State v. Gonzalez

248                         January 30, 2025                            No. 5

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                   STATE OF OREGON,
                   Respondent on Review,
                              v.
               VANESSA AMADA GONZALEZ,
                    Petitioner on Review.
          (CC 17CR78352) (CA A173971) (SC S070433)

   On review from the Court of Appeals.*
   Argued and submitted May 9, 2024.
   Jonathan N. Schildt, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   Kali Montague, Deputy Public Defender, Oregon Public
Defense Commission, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender, Criminal Appellate Section.
   Brittney Plesser and Malori Maloney, Oregon Justice
Resource Center, Portland, and Jeffrey Ellis, Oregon
Capital Resource Center, Portland, filed the brief for amici
curiae Oregon Justice Resource Center and Oregon Capital
Resource Center.
  Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, James, Masih, Justices, and Nakamoto, Senior
Judge, Justice pro tempore.…
   GARRETT, J.
   The decision of the Court of Appeals is affirmed.

______________
    * Appeal from Marion County Circuit Court, Audrey J. Broyles, Judge. 

, 

 (2023).
    … Bushong, J., did not participate in the consideration or decision of this
case.
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250                                        State v. Gonzalez

        GARRETT, J.
         The issue in this criminal case is whether a
90-month mandatory minimum sentence for defendant’s
convictions for first-degree arson would violate the proportionality clause of Article I, section 16, of the Oregon
Constitution, which provides that “all penalties shall be
proportioned to the offense.” Defendant was convicted after
intentionally causing a fire in her apartment building that
resulted in property damage and serious injuries to another
resident. During sentencing, after the trial court reviewed
various circumstances of defendant’s life that it found to
be mitigating, the court concluded that the mandatory
90-month prison sentence was unconstitutionally disproportionate to her offense and imposed a 60-month term of probation instead. On the state’s appeal, the Court of Appeals
reversed, holding that the trial court had erred in relying on
defendant’s personal characteristics and circumstances in
its proportionality analysis. State v. Gonzalez, 

, 

 (2023). We allowed defendant’s petition for
review to consider that question. For the reasons that follow,
we affirm the decision of the Court of Appeals.
                    I. BACKGROUND
         Defendant lived on the second floor of a two-story
apartment building with four units, two on the upper floor
and two on the lower. In November 2017, in an apparent suicide attempt, defendant assembled a variety of combustible
household items, including furniture and papers, on the landing between the two upper story apartments, just in front of
her doorway. After adding flammable items to the pile, including charcoal briquets doused with lighter fluid, defendant lit
the items on fire, went back into her apartment, and shut the
door. Five other people were in the building at the time.
        A man who lived across the street from defendant’s building noticed the fire, which by then had spread
to the stairwell, and tried to put it out. When his efforts
were unsuccessful, he notified the family who lived below
defendant and urged them to leave the building. As they left
their apartment, defendant began yelling at them from her
windowsill, telling them to go back inside and saying that
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she wanted them to die with her. The two men who shared
the other second-floor apartment soon also noticed the fire.
One jumped out a window and was uninjured. The other
man tried to leave through the front door of the apartment.
When he opened the door, the fire “flashed” and rushed
toward him, severely burning him and blocking his escape.
He eventually was also able to jump to safety, but he was
hospitalized for three months due to his burn injuries, followed by two months in a physical therapy facility, and he
has lasting scars on his arm, neck, and shoulder from the
burns. Defendant’s apartment was not damaged; her door
remained closed, which protected it from the heat and fire.
         Defendant was charged with, among other things,
five counts of attempted murder, five counts of first-degree
arson, and one count of second-degree assault. At the ensuing bench trial, defendant presented evidence that, for
several years preceding the incident, she had experienced
physical and emotional trauma as a result of mental illness. She also presented evidence that, in the weeks before
the fire, she had attempted suicide multiple times, she had
been evicted from her apartment, her electricity had been
shut off, her cousin had died from a drug overdose, and the
Department of Human Services had removed her children
from her care. Additionally, defendant presented evidence
that she had used methamphetamine during that period,
which had triggered a psychotic episode in her. Defendant
conceded that she was not relying on the affirmative defense
of guilty except for insanity (GEI), which requires a showing of a “qualifying mental disorder.”1 However, she argued
that the trial court should find that her voluntary intoxication due to methamphetamine use had negated her intent
or that she had “mental difficulties coupled with” methamphetamine use that negated her intent under the “partial
    1
       Under ORS 161.295(1), a person is guilty except for insanity, “if, as a result
of a qualifying mental disorder at the time of engaging in criminal conduct,
the person lacks substantial capacity either to appreciate the criminality of the
conduct or to conform the conduct to the requirements of law.” Subsection (2) of
that statute provides that the term “qualifying mental disorder” does not include
“abnormalit[ies] manifested only by repeated criminal or otherwise antisocial
conduct” or “constituting solely a personality disorder.” At trial, a defense expert
testified that, at the time of the alleged offenses, defendant was experiencing a
“stimulant-induced psychotic disorder,” which the parties agree is not a qualifying mental disorder for purposes of the guilty-except-for-insanity defense.
252                                              State v. Gonzalez

responsibility doctrine.” See ORS 161.125 (voluntary intoxication is not a defense but defendant may offer evidence that
defendant used drugs when relevant to negate an element
of the crime, including intent); ORS 161.300 (evidence of a
“qualifying mental disorder” is admissible if relevant to the
issue of whether the actor did or did not have “the intent
which is an element of the crime”).
         The trial court rejected those arguments. It found
that defendant “intentionally set the fire [and] … intentionally damaged property … and thereby recklessly
placed others in danger of physical injury,” and it convicted
her of five counts of first-degree arson.2 The court rejected
defendant’s contention that she had lacked the requisite
mental state for that crime because, “despite [her] mental
health considerations,” the court found that defendant took
“volitional steps” in starting the fire. The court also found
that the arson had “presented a threat of serious physical
injury,” a finding that both increased the crime seriousness
of the offense for purposes of the sentencing guidelines and
subjected defendant to a 90-month mandatory minimum
prison sentence under ORS 137.700(2)(b)(A).
         The court acquitted defendant on the charges of
attempted murder, finding that she had not had the specific
intent to kill anyone. The court also acquitted defendant of
the charge of second-degree assault (because that charge,
too, required an intentional mental state that the court
found defendant to have lacked), but it convicted defendant
of the charge of third-degree assault for recklessly causing
serious physical injury to her neighbor, under circumstances
manifesting extreme indifference to the value of human life.
ORS 163.165(b) (so defining third-degree assault).
         At sentencing, defendant argued that, as applied to
her, the 90-month mandatory minimum sentence for arson
was unconstitutionally disproportionate under Article I,
section 16, of the Oregon Constitution and the Eighth
Amendment to the United States Constitution.
       The trial court agreed with defendant. The court
acknowledged that defendant’s conduct was “egregious,” that
   2
       Those counts were merged at sentencing.
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she had engaged in volitional acts in setting the fire with other
residents present, that one resident had suffered “significant
and substantial” physical injuries because of her conduct,
and that all residents of the building had suffered emotional
injuries. In addition, the court agreed with the state that
a 90-month sentence was not facially disproportionate—
that is, it was not disproportionate in relation to the elements of the crime or in relation to other crimes that result
in similar sentences.
          However, in the trial court’s view, those factors were
not exclusive. The court had considered in mitigation the
fact that defendant had no criminal history, but the court
also stated that it could consider “mitigating facts in assessing moral culpability,” such as the “psychological paradigm
of [defendant], all factors internal and external as a factor
in the determination of proportionality.” In the court’s view,
those factors included defendant’s unstable childhood, later
traumatic events that she had experienced, the multitude of
stressful events that had occurred in the weeks and months
preceding the fire, the influence of defendant’s methamphetamine use on her psychological health, and her diagnoses of depression, adjustment disorder, anxiety, and posttraumatic stress disorder. The court observed that, despite
facing those challenges and obstacles, defendant had gone
through life with no interaction with the criminal justice
system until a “convergence of stressors”—including, among
other things, her suicide attempts, the eviction notice, and
the loss of her children—“caused her to snap.” Finally, the
court observed that, since her incarceration, defendant’s
mental health had improved and that she had taken responsibility for her conduct and was remorseful.
        For all those reasons, the court concluded that the
90-month mandatory minimum sentence was disproportionate as applied. The court departed from that sentence
as well as the guidelines range, which could have resulted
in an even longer sentence, and sentenced defendant to a
60-month term of supervised probation with orders to complete drug-addiction and mental-health treatment.
        The state appealed, and the Court of Appeals
reversed. That court reviewed the trial court’s ruling for
254                                                      State v. Gonzalez

legal error and concluded that the 90-month mandatory
minimum sentence required by ORS 137.700(2)(b)(A) was
not constitutionally disproportionate as applied. Gonzalez,

. We allowed defendant’s petition for
review.
                             II. ANALYSIS
         Article I, section 16, of the Oregon Constitution
requires criminal sentences to be proportionate to the
offense, providing, as pertinent here, that “[c]ruel and
unusual punishments shall not be inflicted, but all penalties
shall be proportioned to the offense.”3 In State v. Wheeler, 

, 

 (2007), this court undertook a historical examination of the meaning of Article I, section 16,
observing that,
    “[a]t the most basic level, the framers’ concern was that the
    penalty imposed on a criminal defendant be proportioned to
    the specific offense for which the defendant was convicted—
    that it bear the appropriate comparative relation to the
    severity of that crime.”
(Internal quotation marks omitted.) Since 1921, we have
repeatedly stated that a sentence violates the proportionality provision of Article I, section 16, if it “shock[s] the moral
sense” of reasonable people. See, e.g., Sustar v. County Court
for Marion Co., 

, 

 (1921); State v.
Teague, 

, 

 (1959); State v. Rogers,

, 

 (1992) (all using that test).
Whether a sentence “shocks the moral sense” of reasonable
people and, thus, is unconstitutional, is a legal question; in
answering that question, we are bound by the trial court’s
findings of historical facts if they are supported by evidence
in the record. See State v. Ryan, 

, 

 (2017) (court reviews constitutionality of a sentence for
legal error under Article I, section 16).

    3
       Defendant contends that imposing the mandatory minimum sentence also
would be unconstitutional under the Eighth Amendment to the United States
Constitution, which provides, “Excessive bail shall not be required, no excessive
fines imposed, nor cruel and unusual punishments inflicted.” However, defendant
does not develop an argument under the federal constitution that is independent of or distinct from her argument under the Oregon Constitution, and we do
not separately consider defendant’s constitutional argument under the Eighth
Amendment.
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          The primary authority to determine the gravity of
an offense and the appropriate punishment lies with the legislature. State v. Althouse, 

, 

(2016). Moreover, “respect for the separation of powers and
the legislature’s authority to set criminal penalties means
that the court’s role [in assessing proportionality] is a limited one.” Wheeler, 

. We will not second-guess
the legislature’s determination of penalties or range of penalties for a crime unless a punishment is so disproportionate
that it shocks the moral sense of reasonable people. State v.
Rodriguez/Buck, 

, 

 (2009). Under
that standard, we have explained, this court will “ ‘find a
penalty to be disproportionately severe for a particular
offense only in rare circumstances.’ ” 

 (quoting Wheeler,

).
         In this case, the Court of Appeals applied the analytical framework for evaluating proportionality that this
court first described in Rodriguez/Buck and has applied several times since then, including in Althouse, 

;
State v. Davidson, 

, 

 (2016); and
Ryan, 

. We briefly describe that framework and
then its application here.
A. The Rodriguez/Buck Framework
        Defendant challenges the constitutionality of her
sentence within the framework for assessing such challenges that this court first articulated in Rodriguez/Buck.
There, we observed:
   “In declaring unconstitutional a punishment that is so disproportionate, when compared to the offense, so as to ‘shock
   the moral sense’ of reasonable people, this court has identified 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.”

. We further stated that the “offense” for purposes of Article I, section 16, is “the specific defendant’s
particular conduct toward the victim that constituted the
crime, as well as the general definition of the crime in the
statute.” 

. And, we went on,
256                                                State v. Gonzalez

      “[i]n considering a defendant’s claim that a penalty is constitutionally disproportionate as applied to that defendant,
      then, 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.”

          In Rodriguez/Buck, we considered two consolidated
cases, in each of which the defendant had been convicted
of first-degree sexual abuse and sentenced to a mandatory
minimum term of 75 months’ imprisonment for a single,
brief, sexual contact with a child: over-the-clothes touching of the sexually intimate parts of a child in one case and
holding the child’s head to the defendant’s clothed breasts in
the other. This court held that those sentences were excessive as applied to those defendants, principally because neither defendant had had any prior criminal charges, arrests,
or reported police contact; the presumptive non-Measure 11
sentence for their crimes was 16-18 months in prison; and
the 75-month mandatory minimum sentence for first-degree
sexual abuse applied to a broad range of conduct, including
conduct that was far more serious than that for which the
defendants had been convicted. 

.
         Similarly, in Davidson, this court held that a statutorily required life sentence without the possibility of parole
was unconstitutionally excessive for a defendant’s third conviction for public indecency for exposing himself at a public
park. 

. We reasoned that public indecency is
generally considered a high-level misdemeanor or a low-level
felony; it is not considered to be as serious as other sexual
offenses, such as those that involve nonconsensual sexual
contact or sexual behaviors targeting children. 

.
Yet the sentence that had been imposed on the defendant
was the most severe penalty that exists in Oregon law other
than the death penalty. 

 We reached a different conclusion in Althouse, which, like Davidson, involved a defendant
who had been convicted of public indecency and sentenced
to life without parole under a repeat-offender statute. In
Althouse, however, the defendant had an extensive history of
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more serious sex crimes, including sexual abuse and sodomy
of children. 

 (“Given the seriousness of defendant’s repeated sexual misconduct and the danger that it
forecasts for others, we cannot say that imposing presumptive life sentence in response to defendant’s pattern of criminal behavior violated Article I, section 16.”).
B. “Personal Characteristics” and State v. Ryan
          As noted above, Rodriguez/Buck permits a court to
consider “case-specific factors, such as characteristics of the
defendant” in assessing the gravity of the offense for purposes of a constitutional disproportionality analysis.4 

. Rodriguez/Buck did not further explain what “characteristics of the defendant” may be relevant, as no such characteristics were pertinent to our analysis in that case. This
court’s first opportunity to explore that issue came in Ryan,
where we addressed whether a defendant’s intellectual disability is a personal characteristic that may affect the gravity of the offense in a proportionality analysis. The defendant
in that case received a 75-month mandatory minimum sentence for over-the-clothes touching of the sexually intimate
parts of two victims aged nine and 14. At his sentencing,
the defendant argued that the 75-month minimum sentence
for first-degree sexual abuse, which was mandated by ORS
137.700(2)(a)(P), would be disproportionate as applied to him
because of his intellectual disability. 

. The trial
court ruled that the mandatory minimum sentence was not
disproportionate as applied to the defendant, but the court
did not indicate that it had considered the defendant’s intellectual disability as a factor in its analysis. 

          On review, this court began by noting that the
United States Supreme Court and other federal courts had
    4
       In Rodriguez/Buck, the court stated that it had identified “at least” three
factors that bear on whether a punishment is so disproportionate when compared
to the offense as to shock the moral sense of reasonable people. In other words,
the court did not intend the three factors that we described above to be an exclusive list of factors to be considered. We observe that “characteristics of the defendant” is not a particularly close fit when considering the gravity of the offense
under the first Rodriguez/Buck factor, and perhaps it would make more sense to
consider the subjective characteristics of the defendant as a separate factor that
may affect the moral sense of reasonable people that a punishment is disproportionate. But the parties in this case dealt with defendant’s mental illness in the
context of discussing the gravity of the offense, as this court did in Ryan. For that
reason, we take the same approach here.
258                                            State v. Gonzalez

previously addressed proportionality challenges under the
Eighth Amendment by intellectually disabled offenders sentenced to death and to mandatory minimum sentences. 

. We observed that the Supreme Court, in Atkins v.
Virginia, 

, 

, 

 (2002),
had held that the Eighth Amendment prohibits the execution
of an intellectually disabled offender, because “ ‘the American
public, legislators, scholars, and judges’ had deliberated over
the question of the death penalty for the intellectually disabled and had come to a consensus that it should be prohibited” and the Court’s own judgment was that there was no
reason to disagree with that consensus view. Ryan, 

-18 (quoting Atkins, 

). As we explained in
our opinion in Ryan, the Court in Atkins had concluded that,
for an intellectually disabled person, the penological justifications for the death penalty are diminished because intellectually disabled persons have a reduced ability “ ‘to understand and process information, to learn from experience, to
engage in logical reasoning, [and] to control impulses.’ ” 

 at
618 (quoting Atkins, 

 (brackets in Ryan)).
         This court in Ryan further noted that, despite the
Court’s pronouncements about the reduced justification for
treating intellectually disabled offenders the same as other
offenders, lower federal courts had routinely held that Atkins
applied only to offenders otherwise subject to the death penalty; they had declined to apply the same reasoning in proportionality cases involving mandatory prison sentences.
Id. at 619. However, this court took note of a legal commentator’s statement that “ ‘[j]ust about everyone working in
the field’ ” believed that “ ‘the diminished intelligence of the
offender ought to be a major factor in determining appropriate sentences.’ ” Id. at 620 (quoting Paul Marcus, Does
Atkins Make a Difference in Non-Capital Cases? Should It?,
23 Wm & Mary Bill Rts J 431, 456 (2014). We acknowledged
“the force of that view” and held:
   “Evidence of an offender’s intellectual disability therefore
   is relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence. Accordingly,
   we conclude that, where the issue is presented, a sentencing court must consider an offender’s intellectual disability
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   in comparing the gravity of the offense and the severity of
   a mandatory prison sentence on such an offender in a proportionality analysis under Rodriguez/Buck.”
Id. at 620-21.
          We then turned to examine how that consideration
should affect the proportionality analysis under the Oregon
Constitution. Id. at 621. Reasoning that “there exists a
broad spectrum of intellectual disabilities that may reduce,
but not erase” a person’s culpability, we determined that a
“one-size-fits-all approach is not appropriate.” Id. Rather, a
sentencing court’s findings “as to an intellectually disabled
offender’s level of understanding of the nature and consequences of his or her conduct and ability to conform his or
her behavior to the law” will be relevant to the proportionality of a sentence as applied to the offender. Id.
          In Ryan, the undisputed evidence at sentencing
showed that the defendant had an IQ score of between 50
and 60, corresponding to a mental age of 10, which, the court
observed, was two years below the minimum age for establishing criminal responsibility in Oregon, as set out in ORS
161.290.5 Id. at 623. We explained that the legislature’s pronouncement on the age of criminal responsibility was relevant to the proportionality analysis “because it is 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 Ultimately, we
concluded that the trial court had erred when it compared
the gravity of the defendant’s offense and the severity of the
mandatory minimum sentence without sufficiently considering evidence that the defendant’s “age-specific intellectual
capacity fell below the minimum level of criminal responsibility for a child.” Id. at 625-26.
        In a concurring opinion, Justice Balmer emphasized his understanding that the majority’s holding was
   5
       ORS 161.290 provides:
       “(1) A person who is tried as an adult in a court of criminal jurisdiction
   is not criminally responsible for any conduct which occurred when the person
   was under 12 years of age.
       “(2) Incapacity due to immaturity, as defined in subsection (1) of this section, is a defense.”
260                                            State v. Gonzalez

more limited than the broad rule that the defendant had
proposed. As the concurrence explained, whereas the defendant in Ryan had urged that “any personal characteristics
that ‘mitigate[ ] culpability’ ” are relevant to the Article I, section 16, proportionality analysis, the majority had adopted
a “narrower approach” in concluding, on the basis of Atkins
and ORS 161.290, that the sentencing court was required to
have considered the evidence of the defendant’s intellectual
functioning. Id. at 626, 629, 634 (Balmer, J., concurring).
         In this case, after discussing both the majority
and concurring opinions in Ryan, the Court of Appeals
explained that its own post-Ryan cases have “restricted the
consideration of a defendant’s personal characteristics to
those affecting intellectual capacity.” Gonzalez, 

. The court went on to note that, “in contrast with
Ryan, defendant has not identified any statutory or other
basis for concluding that there is a ‘societal standard that
eschews’ treating persons with defendant’s mental health
attributes the same way that other adults are treated where,
as here, they are found to have acted with the requisite culpable mental state.” 

 at 601-02 (quoting Ryan, 

).
C. Application
         Of the three factors identified in Rodriguez/
Buck—a comparison of the severity of the penalty and the
gravity of the crime; a comparison of the penalties imposed
for other, related crimes; and the criminal history of the
defendant—the first is the focus of our analysis. Defendant
does not argue that a 90-month mandatory minimum sentence for first-degree arson is disproportionate in comparison with penalties imposed for other crimes. Nor does she
argue that her lack of a criminal history should weigh heavily under the circumstances of this case. Rather, defendant’s
argument focuses on the first Rodriguez/Buck factor, and,
specifically, the extent to which her personal characteristics
should affect the court’s view of the severity of the penalty
in relation to the gravity of the crime.
        Before we turn to the first Rodriguez/Buck factor,
we consider the “offense” that defendant committed, which,
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as we explained in Rodriguez/Buck, means both defendant’s
particular conduct and the general statutory definition. 

. Under ORS 164.325, a person commits first-degree
arson if, by means of fire or explosion, the person intentionally damages another’s property and recklessly places
another person in danger of physical injury. Here, the trial
court found that defendant intentionally set a fire in the
landing of her apartment building, intentionally damaged
property, and recklessly placed others in danger of physical
injury. Defendant’s conduct thus falls squarely within the
definition of first-degree arson.
         The first Rodriguez/Buck factor requires a comparison of the severity of the penalty and the gravity of the
crime. We begin with an examination of the penalty, both in
relation to other conduct that is subject to the same sentence
and in relation to the penalties imposed for other crimes,
because that penalty is “an external source of law” that
assists the court in determining whether imposition of that
penalty would shock the moral sense of reasonable people.
Wheeler, 

. As we have said, the legislature’s
enactment of a particular penalty does not itself establish
constitutional proportionality—the courts ultimately must
decide whether penalties exceed constitutional limits. State
v. Bartol, 

, 

 (2021). But enactment of the penalty is important because it is evidence of
societal standards and enables the objective comparisons
that Article I, section 16, requires. A court can compare
the relative “ ‘harm caused or threatened to the victim or
society, and the culpability of the offender’ ” by looking to
the “ ‘widely shared views as to the relative seriousness of
crimes’ ” that “ ‘the criminal laws make clear.’ ” Rodriguez/
Buck, 

 (quoting Solem v. Helm, 

, 292-
93, 

, 

 (1983)).
          Defendant committed first-degree arson by intentionally setting a fire that damaged property and recklessly
placed other people in danger of physical injury. When, as
here, that offense “represented a threat of serious physical
injury,” it is subject to the mandatory minimum sentence of
90 months in prison. ORS 137.700(2)(b)(A). We also note that,
under Oregon’s felony sentencing guidelines, first-degree
262                                                        State v. Gonzalez

arson is ranked at crime-seriousness levels 7-9, based on
the type and amount of property damage, but it is ranked at
level 10 if the offense also “represented [a] threat of serious
injury.” OAR 213-017-0002(11). Arson that threatens serious
physical injury carries a presumptive sentence of up to 130
months in prison, depending on the person’s criminal history—and that sentence is subject to doubling by departure.
OAR 213-004-0001, App 1 (sentencing guidelines grid); OAR
213-008-0003 (durational departures shall not total more
than double the maximum duration of a presumptive prison
term). If a court finds substantial and compelling reasons
to depart from the presumptive guidelines sentence range,6
even a person with no criminal history—such as defendant—
could receive a sentence of 116-120 months in prison for
arson that threatened serious physical injury. OAR 213-004-
0001, App 1 (sentencing guidelines grid). In other words, had
defendant been sentenced under the guidelines, she could
have received an even longer sentence than the 90-month
mandatory minimum sentence required by ORS 137.700.
          The legislature thus regards first-degree arson as
a very serious crime, particularly when it threatens serious physical injury. In this case, unlike in Rodriguez/Buck
and Davidson, the gravity of defendant’s conduct is not “relatively minor” in comparison to the range of other conduct
that is subject to the same mandatory minimum sentence
for first-degree arson. See Davidson, 

 (finding that public indecency is “relatively minor in comparison
with the majority of the other sex offenses identified in ORS
163A.005(5) that may result in a true-life sentence under
ORS 137.719”). As the trial court found, defendant’s conduct
was “egregious,” it caused “emotional injury” to all victims,
and it caused “significant and substantial” physical injury to
the neighbor. We also observe that first-degree arson is not
less serious than other crimes carrying a 90-month mandatory minimum sentence under ORS 137.700. Those include
attempt or conspiracy to commit murder, ORS 137.700(2)(D);
first-degree assault, ORS 137.700(2)(G); first-degree
    6
      The state asserts that, based on the facts of this case, it could have pursued
a departure sentence on the ground that defendant’s conduct “resulted in permanent injury” to the neighbor. OAR 213-008-0002(1)(b)(I) (that offense resulted in
permanent injury is aggravating factor to be considered in determining whether
substantial and compelling reasons for a departure exist).
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kidnapping, ORS 137.700(2)(I); and first-degree robbery,
ORS 137.700(2)(R). We therefore conclude that, apart from
consideration of any personal characteristic of defendant
that may have constitutional significance, imposition of a
90-month mandatory minimum sentence for her conduct
would not “ ‘shock the moral sense’ of reasonable people.”
Rodriguez/Buck, 

.
          In this case, defendant asserts that mental illness, like intellectual disability, is a “characteristic of the
defendant” that courts must consider in a proportionality
analysis under Article I, section 16. Pointing out that, in
Ryan, this court identified a societal consensus that a person’s intellectual functioning makes the person less culpable than other offenders, defendant contends that such a
societal consensus also exists for mental illness. She points
first to the United States Supreme Court’s decision in Penry
v. Lynaugh, 

, 

, 

 (1989), abrogated by Atkins, 

, in which the
Court held that the jury could consider the facts that the
defendant was intellectually disabled, with a mental age of
six and a half years old, and that he had a history of child
abuse, when deciding whether to impose the death penalty.
Defendant argues that Penry supports her position, because,
in that case, the Court stated:
   “If the sentencer is to make an individualized assessment
   of the appropriateness of the death penalty, evidence about
   the defendant’s background and character is relevant
   because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to
   a disadvantaged background, or to emotional and mental
   problems, may be less culpable than defendants who have
   no such excuse.”

 (internal quotation marks omitted). In
addition, defendant points to, among other things, a postconviction case in which the Court held that a lawyer provided ineffective assistance of counsel in failing to investigate the defendant’s mental health as a mitigating factor in
his sentencing, Porter v. McCollum, 

, 

, 

 (2009); a case in which the Court limited the detention of a mentally incompetent defendant to
a reasonable period of time to determine whether he would
264                                         State v. Gonzalez

attain the capacity to stand trial, Jackson v. Indiana, 

, 

, 

 (1972); and a case
in which the Court held that the Eighth Amendment prohibits executing “insane” persons, Ford v. Wainwright, 

, 

, 

 (1986).
          Defendant acknowledges that none of those cases
holds that mental illness is a characteristic that must be
considered as part of the proportionality analysis in noncapital cases. Nonetheless, defendant argues that mental illness, like intellectual disability, reduces culpability because
it, too, reduces the defendant’s ability “ ‘to understand and
process information, to learn from experience, to engage in
logical reasoning, [and] to control impulses.’ ” Ryan, 

 (speaking of intellectual disability (quoting Atkins,

)). Thus, defendant argues, the same rationale
that animated our decision in Ryan suggests that any personal characteristic that can be thought to influence a person’s conduct and thereby make a person less blameworthy
may be considered in the court’s evaluation of the “gravity of
the offense” for purposes of a proportionality analysis.
         Defendant faults the Court of Appeals for reading
Ryan too “narrowly” to the extent that, in her view, that
court understood Ryan to hold that intellectual disability
is the only personal characteristic that may affect the proportionality analysis. Defendant acknowledges that ORS
161.290 was crucial to the court’s analysis in Ryan, but she
argues that, in evaluating whether a punishment in a particular case would conflict with “societal standards,” legislative enactments cannot be the only source of such standards. She contends that the Court of Appeals’ decision in
this case did not leave room for consideration of indicia of a
societal consensus that individuals with mental illness also
may be less culpable than those without mental illness.
         We agree with defendant that Ryan did not hold
that no characteristic other than intellectual disability may
ever be relevant. In fact, it neither embraced nor rejected
the proposition that other personal characteristics may be
relevant. The court decided the case before it, which concerned the defendant’s intellectual disability. However, the
Court of Appeals’ analysis in this case was consistent with
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Ryan. Contrary to defendant’s argument on review, the
Court of Appeals did not interpret Ryan to foreclose the possibility that personal characteristics other than intellectual
disability might, theoretically, be relevant to constitutional
proportionality in a particular case. After discussing Ryan,
that court went on to explain what was present in Ryan that
is not present here:
   “[I]n contrast with Ryan, defendant has not identified any
   statutory or other basis for concluding that there is a ‘societal standard that eschews’ treating persons with defendant’s mental health attributes the same way that other
   adults are treated where, as here, they are found to have
   acted with the requisite culpable mental state, notwithstanding the presence of mental health issues.”
Gonzalez, 326 Or at 601-02 (quoting Ryan, 

). As
that passage indicates, the Court of Appeals looked for indications of a consensus that “persons with defendant’s mental health attributes” are less culpable than those without
them, and it sought such indications in “statutory or other”
bases.
         The court went on to explain that “the law accounts
for” the possibility that mental health may affect culpability
by providing for the GEI defense and by allowing a defendant to use evidence of mental illness to negate a showing
that he or she possessed the necessary mental state for a
crime. 

. In light of that, the court concluded, “it
is difficult to see how such conditions might then also be
relevant” to concluding that a defendant who had been properly found guilty was nevertheless less culpable than other
defendants. 

 But acknowledging that it is “difficult to see”
how mental illness might affect a person’s culpability when
that person was found to have taken “volitional steps” and
to have acted intentionally in committing a crime does not
amount to a holding that no characteristic other than intellectual disability may ever be relevant.
         As we have explained, Ryan did not simply rely
on this court’s own perception of a societal consensus that
intellectual disability can, in some general sense, reduce a
person’s culpability. Rather, in applying the instruction from
our case law to determine whether a sentence would “shock
266                                         State v. Gonzalez

the moral sense of reasonable people,” this court relied on
“objective evidence of a societal standard” that supplied a
basis to determine more precisely when an intellectually
disabled offender’s culpability is different from that of other
offenders. Ryan, 

. As discussed, in Ryan, that
objective evidence was the legislature’s enactment of ORS
161.290, which provides that a person is not criminally
responsible for any conduct that occurred when the person
was under 12 years of age. 

         Defendant is correct that Ryan does not compel the
conclusion that only a legislative enactment may provide
the evidence of such a “societal standard.” But the Court of
Appeals appears to have correctly understood that as well,
as evidenced by its observation that defendant had identified “no statutory or other basis” for the societal standard
of which defendant urges recognition. Gonzalez, 

 (emphasis added). Because of the legislature’s
primary role in determining the punishments for criminal
conduct, it is appropriate that, in determining whether a
societal standard exists that militates against imposing a
punishment that would otherwise be required, courts will
give great weight to the existence or absence of legislative
enactments bearing on such a standard. However, that does
not make the existence or absence of legislation dispositive
in the analysis. As we stated in Bartol, “legislative enactments are strong indicators of current societal standards,
but [they] are not dispositive of whether a sentence comports
with those standards.” 

. At bottom, however,
as both Bartol and Ryan reflect, there must be some objective basis for allowing this court to discern a societal standard that requires treating persons with certain attributes
differently for purposes of criminal culpability—even in the
face of a legislative policy (such as a mandatory minimum
sentence) that would otherwise require them to be punished
the same as others.
         We turn to defendant’s argument that, in this case,
the trial court was correct to take her mental illness into
account in its proportionality analysis. There is no doubt
of the general proposition that mental illness may bear on
culpability. That is evident in the legislature’s enactment of
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ORS 161.295, which provides a defense for persons with a
“qualifying mental disorder” who lack the capacity to appreciate the criminality of their conduct or conform their conduct to the requirements of the law, as well as ORS 161.300,
which allows defendants to introduce evidence that they
suffer from a “qualifying mental disorder” to show that they
did not have the requisite intent to commit the charged
offense. Indeed, Oregon, like other states and jurisdictions
around the world, has recognized an “insanity” defense for
over a hundred years, demonstrating that society has long
understood the relationship between mental illness and
criminal responsibility. See, e.g., State of Oregon v. Zorn, 

, 

 (1892) (recognizing insanity defense
for a defendant who “was laboring under such a defect of
reason, from disease of the mind, as not to know the nature,
quality, or consequences of the act he was committing, or
that if he did know it, he did not clearly understand what he
was doing was wrong”); see also Kahler v. Kansas, 

, 

, 

 (2020) (“[F]or hundreds of years jurists and judges have recognized insanity
(however defined) as relieving responsibility for a crime.”);
Daniel M’Naghten’s Case, 8 English Reports 718, 722 (1843)
(“[T]o establish a defence on the ground of insanity, it must
be clearly proved that, at the time of the committing of the
act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature
and quality of the act he was doing; or, if he did know it, that
he did not know he was doing what was wrong.”).
         Those authorities show that persons who, by reason of their mental illness, lack the capacity to appreciate
the criminality of their conduct or to conform their conduct
to the requirements of the law are not criminally responsible for their conduct. Here, however, the trial court found
that defendant did have the requisite intent to commit
first-degree arson, and, necessarily, that she did appreciate
the criminality of her conduct. To be consistent with Ryan,
defendant’s argument requires identifying some basis for
concluding that society regards a person with mental health
attributes like hers as less culpable than other offenders
despite the fact that, according to the trial court’s findings,
defendant retained the capacity to appreciate the criminality
268                                         State v. Gonzalez

of her conduct and to form the intent to commit a crime. The
record in this case does not permit such a conclusion.
         Defendant asserts, generally, that “mentally ill
people are less morally culpable than others.” But the term
“mental illness” encompasses a vast array of conditions, and
defendant’s assertion fails to account for either the range
of disorders that may fall within the scope of that term or
the different ways that such disorders may affect those who
suffer from them. Importantly, defendant directs us to no
authority for a generally accepted principle that any person
with a mental illness, of whatever nature, is so much less
morally culpable for criminal conduct than a person without
a mental illness that imposition of a mandatory minimum
sentence would be unconstitutional.
         Indeed, defendant acknowledges that “not all mental illnesses will require a finding that a lengthy mandatory
prison sentence is unconstitutional, because like people with
intellectual disabilities, not all people with mental illness
will be so impaired as to fall within the range of mentally ill
offenders who are deemed less morally culpable than those
with no excuse.” Given that acknowledgment, the only question before us is whether we can identify a societal standard
that requires a court to view a person with a constellation
of mental health attributes comparable to defendant’s as so
much less culpable than people without those attributes that
the mandatory 90-month sentence cannot constitutionally
be imposed. In defendant’s case, the record reflects that her
diagnoses of mental disorders include, among other things,
depression, anxiety, adjustment disorder, and opioid-use
disorder. Defendant has not cited any evidence of a societal standard recognizing that people who suffer from those
disorders—but who have the ability to form the requisite
mental state and appreciate the gravity of their conduct—
have reduced moral culpability for their criminal conduct to
the extent that imposing the mandatory minimum sentence
would violate Article I, section 16.
         Defendant intentionally committed arson that recklessly put five other people at risk of serious physical injury
and caused serious physical injury to one of those people.
In light of the trial court’s specific findings that defendant
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had the requisite mental state and possessed the ability to
appreciate the criminality of her conduct, and in the absence
of evidence of a societal standard recognizing that people
with mental health issues similar to hers are less morally
culpable for their crimes, requiring defendant to serve the
90-month minimum sentence that the legislature chose for
that crime does not shock the moral sense of reasonable
people.
        The decision of the Court of Appeals is affirmed.