602	                            June 22, 2017	                             No. 35

               IN THE SUPREME COURT OF THE
                     STATE OF OREGON

                    STATE OF OREGON,
                    Respondent on Review,
                               v.
                    STEVEN LEVI RYAN,
                     Petitioner on Review.
            (CC 13C43883; CA A156146; SC S063857)

    On review from the Court of Appeals.*
    Argued and submitted September 20, 2016.
   David O. Ferry, Deputy Public Defender, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs was Ernest G. Lannet, Chief Defender, Office
of Public Defense Services.
   Susan Yorke, 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.
   Alexander A. Wheatley, Portland, filed the brief for amici
curiae Fair Punishment Project and Oregon Justice Resource
Center.
  Before Balmer, Chief Justice, and Kistler, Walters, Landau,
Brewer, and Nakamoto, Justices, and Baldwin, Senior
Justice pro tem.**
    BREWER, J.
   The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgments of conviction are
affirmed, but the sentences are vacated, and the case is
remanded to the circuit court for resentencing, in a manner
consistent with this opinion.
   Balmer, C.J., concurred and filed an opinion, in which
Kistler, J., and Landau, J., joined.
____________
	**  Appeal from Marion County Circuit Court, Vance D. Day, Judge.
	  **  Flynn, J., did not participate in the consideration or decision of this case.
Cite as 361 Or 602 (2017)	603

    Case Summary: Defendant, who pleaded guilty to first-degree sexual abuse,
argued at sentencing that 75 months’ imprisonment, as mandated under ORS
137.700(2)(a)(P), was unconstitutionally disproportionate as applied to him
because of his intellectual disability. Held: In comparing the gravity of defen-
dant’s offense and the severity of the sentence, the trial court erred in failing
to consider evidence of defendant’s intellectual disability when that evidence, if
credited, would establish that defendant’s age-specific intellectual capacity fell
below the minimum level of criminal responsibility for a child.
     The decision of the Court of Appeals is affirmed in part and reversed in part.
The judgments of conviction for third-degree sexual abuse and resulting sen-
tences are affirmed. The judgment of conviction for first-degree sexual abuse is
affirmed, but the sentence is vacated, and the case is remanded to the circuit
court for resentencing on that conviction.
604	                                             State v. Ryan

	       BREWER, J.
	       Defendant, who is intellectually disabled, makes
an as-applied challenge to his 75-month mandatory mini-
mum prison sentence for first-degree sexual abuse, ORS
163.427, on the ground that it violates Article I, section 16,
of the Oregon Constitution, and the Eighth Amendment to
the United States Constitution, which prohibit sentences
that are disproportionate to the offense for which they are
imposed.
	        Defendant pleaded guilty to one count of first-degree
sexual abuse and three counts of third-degree sexual abuse,
for over-the-clothes touching of the sexually intimate parts
of nine- and fourteen-year-old victims. At his sentencing,
defendant argued that the 75-month minimum sentence for
first-degree sexual abuse, which was mandated by ORS 137.700
(2)(a)(P) (Measure 11), would be disproportionate as applied
to him. As part of the proportionality analysis, defendant
argued that the trial court should take into account his
intellectual disability, as well as the availability of residen-
tial rehabilitative treatment for him as part of an alterna-
tive probationary sentence.
	        The trial court noted that defendant was intellec-
tually disabled, but the court did not indicate that it had
considered that factor in its proportionality analysis, and
the court ruled that it lacked authority to consider the avail-
ability of rehabilitative treatment for defendant in a non-
incarcerative setting, unless it first could conclude that the
Measure 11 prison term was disproportionate. The court
then concluded that the Measure 11 sentence was not dis-
proportionate. The Court of Appeals affirmed without opin-
ion. State v. Ryan, 275 Or App 22, 364 P3d 1012 (2015). For
the reasons explained below, we conclude that the trial court
erred when it compared the gravity of defendant’s offense and
the severity of the Measure 11 sentence, because the court
failed to consider evidence of defendant’s intellectual dis-
ability when that evidence, if credited, would establish that
the sentence would be arguably unconstitutional because it
shows that defendant’s age-specific intellectual capacity fell
below the minimum age level of criminal responsibility for a
child. However, we decline to consider defendant’s argument
Cite as 361 Or 602 (2017)	605

on review that the availability of rehabilitative treatment
is relevant to the gravity of his offense, because defendant
failed to adequately develop that argument within the con-
text of this court’s analytical framework for proportional-
ity challenges under Article I, section 16. Accordingly, we
remand defendant’s conviction for first-degree sexual abuse
for resentencing, and otherwise affirm.
       I.  FACTS AND PROCEDURAL HISTORY
	         As we will explain, defendant has intellectual dis-
abilities, as well as attention deficit hyperactivity disorder
(ADHD). When he committed the offenses at issue, defen-
dant was on probation for second-degree criminal mischief
for having masturbated into an item of clothing in a depart-
ment store dressing room.
	        In his plea petition in this case, defendant acknowl-
edged that, on July 15, 2013, he subjected a nine-year-old
child, AS, to sexual contact by touching her genital area.
The incident occurred at a sleepover birthday party involv-
ing a group of defendant’s adult disabled friends. One friend
brought his sisters, AS (age nine) and CS (age 14). On the
evening of the sleepover, defendant flirted with CS and sent
her a text message asking her to join him in the bathroom to
kiss. Inside the bathroom, defendant slapped and grabbed
CS’s buttocks, ground his penis against her, attempted to
expose her breasts by pulling on her dress, and kissed her
on the mouth.
	         The next morning, while most of the party guests
were outside, AS went into the house to retrieve her shoes.
While inside, she encountered defendant, who was the only
other person in the house. Defendant pushed AS to the
floor, got on top of her, grabbed her genital area outside her
clothing, and ran his hand down her leg. AS told defendant
to get off her, and defendant complied, but he then chased
her as she tried to run away. AS ended the pursuit by kick-
ing defendant. Afterwards, AS was upset and crying, and
she stated at sentencing that she had been very frightened
during the incident.
	       The state charged defendant with three counts of
third-degree sexual abuse based on the incident involving
606	                                                          State v. Ryan

CS, and one count of first-degree sexual abuse for his con-
duct with respect to AS. Defendant pleaded guilty to all
four charges. However, defendant argued at sentencing
that, in view of his intellectual disability, the imposition of
a 75-month prison term on the first-degree sexual abuse
conviction under Measure 11 would be unconstitutionally
disproportionate. In support of that argument, defendant
provided the court with written reports from four mental
health evaluations performed between 2008 and 2013. All
the evaluators diagnosed defendant with intellectual dis-
abilities. The first evaluator reported an IQ score of 50 for
defendant, the most recent IQ test scored defendant at 60,
and each evaluator found significant impairment in his
adaptive functioning.1 Defendant represented to the court
that he functioned at an approximate mental age of 10, and
the state did not dispute that representation.
	       More specifically, the first evaluation—performed
when defendant was 17 and living in an adolescent group
home—was part of an effort to secure services for defendant
based on his developmental delay. The evaluator, Dr. Sacks,
noted that defendant had a history of striking out at oth-
ers and that, between 2001 and 2006, he had engaged in
misconduct that “seemed to increase in severity.” Sacks
diagnosed defendant with Conduct Disorder and Reactive
Attachment Disorder and stated that defendant needed a
residential setting with highly developed structure to avoid
impulsive and dangerous acts.
	       The second evaluation was performed in 2012, when
defendant was 21, to determine whether he was able to aid
and assist in his defense on the criminal mischief charge.
The evaluator, Dr. Stoltzfus, diagnosed defendant with low
cognitive functioning, attention deficit hyperactivity disor-
der (ADHD), and Conduct Disorder. Stoltzfus reported that

	1
       Impairment in “adaptive functioning” refers to “significant limitations in
an individual’s effectiveness in meeting the standards of maturation, learning,
personal independence, and/or social responsibility that are expected for his
or her age level and cultural group, as determined by clinical assessment and,
usually, standardized scales.” Kevin P. Weis, Confessions of Mentally Retarded
Juveniles and the Validity of Miranda Rights Waiver, 37 Brandeis L J 117, 126
(1998) (quoting American Association on Mental Deficiency, Classification in
Mental Retardation 11 (Herbert J. Grossman ed. 1983)).
Cite as 361 Or 602 (2017)	607

defendant had been placed in foster care at age 12 for kiss-
ing a seven-year-old girl and that he primarily had lived
in group home settings between the ages of 12 and 21. In
his interview with Stoltzfus, defendant made repeated ref-
erences to aggression toward people who made him angry.
Stoltzfus opined that defendant had a high degree of impul-
sivity and reactive hostility that could be ameliorated to
some extent with psychotropic medication, but that “[h]is
low cognitive and low adaptive functioning are not amena-
ble to treatment and will never change.” Stoltzfus concluded
that defendant was not then capable of aiding and assisting
his defense. As a consequence, defendant was placed in the
Oregon State Hospital for further evaluation and treatment.
	        In December 2012, Dr. Corbett evaluated defen-
dant at the state hospital. He noted that defendant had
been placed in nonrelative foster care for extended intervals
between 2005 and 2008, and that he had received services
for his developmental delay in Marion County from 2006 to
2009. Defendant stated that he had been so angry at the
hospital that he wanted to hit people, but Corbett noted that
defendant had made some progress in “competency resto-
ration education.” Corbett opined that defendant had made
sufficient progress that he was then able to aid and assist in
his defense.
	        Finally, in December 2013, Dr. Nance evaluated
defendant for his sentencing in this case. Nance noted the
allegation that defendant had violated his probation on the
criminal mischief charge by possessing pornography and
engaging in improper internet use. Defendant was in jail at
the time of his evaluation and told Nance that he did not feel
safe there. He described suicidal and homicidal thoughts,
but denied that he would act on them.
	        Nance diagnosed defendant with limited intellec-
tual functioning and as being immature, paranoid, and
depressed, and having questionable judgment. On account
of his intellectual deficiencies, defendant was unable to take
a useful polygraph examination, which was a concern to
Nance, because mandated polygraphs are a primary tool
of community supervision. According to Nance, defendant
was at high risk for re-offending, because he had a sense
608	                                             State v. Ryan

of sexual entitlement with “rape attitudes,” some hostil-
ity toward women, and a lack of concern for others. So far,
Nance opined, defendant had expressed an attitude that did
not support probation. In Nance’s view, defendant posed a
high risk to commit a similar or more serious crime and
was not a suitable candidate for community supervision.
Defendant’s prognosis for “full rehabilitation” was poor to
fair, Nance opined, but good for “some benefit from support-
ive therapy.” Nance recommended a lengthy course of court-
mandated sex offender treatment and stated that the court
“may consider” a group home that would administer psycho-
tropic medications and ultimately support defendant’s com-
munity supervision. Nance opined that the antisocial aspect
of defendant’s disorder would be exacerbated if he were to be
incarcerated.
	        In addition to the evaluators’ reports, defendant
presented testimony at sentencing from the director of a
residential facility that specialized in treating intellectually
disabled sexual offenders. The director, Watson, testified
that he had one residential space available to treat defen-
dant as part of an alternative nonincarcerative sentence.
Participants living in his program’s homes were supervised,
but not in “closed custody,” meaning that “[i]t’s not a locked,
secure facility.” Watson had not personally evaluated defen-
dant, but he had reviewed reports from other evaluators.
He expressed reservations about defendant’s suitability for
the program, because, despite the prior existence of “sup-
ports,” defendant had not engaged in sex offender treatment.
However, Watson stated that he would accept defendant
under “certain conditions,” including that “I need to make
sure I have the backing of the court,” because,
   “based on the evidence that I’ve heard today, [defendant]
   certain is a—this moderate high-risk guy. And his risk
   is high under these unsupervised, unstructured environ-
   ments. What that looks like underneath highly structured
   and supervised, I don’t know. I’ve not evaluated him and
   can’t render an opinion until we know more.”
	        In opposing defendant’s constitutional challenge,
the prosecutor “agree[d] with the [d]efense that one of the
things that the Court can also look at is the characteris-
tics of both the [d]efendant and the victim. And the State
Cite as 361 Or 602 (2017)	609

does not dispute that this [d]efendant has mental disabili-
ties.” However, the prosecutor asserted that “you don’t look
at just one part of the [d]efendant, but rather, again, we get
to look at all of his characteristics.” The prosecutor noted
that defendant’s own evaluator, Nance, had “place[d] him in
the middle of the high risk to reoffend with similar or more
serious types of crimes in our community. He’s also thought
to not be a good candidate for community supervision.”
Because defendant had abused more than one child and had
an ongoing problem with controlling his sexual urges, and
because he was “impulsive, emotionally agitated, verbally
aggressive and abusive, and in need of structure to avoid
impulsive and destructive acts,” the prosecutor argued that
community safety required his incarceration.
	       Defendant countered that, in view of his intellec-
tual disability, imposing a 75-month prison sentence on
him would shock the moral sense of reasonable people. He
requested, instead, that he be sentenced to probation, condi-
tioned on court-mandated residential treatment in Watson’s
program. In response, the prosecutor asserted that the
availability of alternatives to incarceration had no bearing
on the determination whether a particular term of incarcer-
ation was constitutionally disproportionate.
	        The trial court noted that defendant was intellectu-
ally disabled. However, the court did not indicate that it had
considered that characteristic in resolving defendant’s con-
stitutional challenge. Consistently with the request of the
victim CS at sentencing, the court did state that it would
like to provide treatment for defendant. However, the court
opined that it could not consider the availability of treat-
ment as part of an alternative sentence without first con-
cluding that the prescribed Measure 11 sentence was consti-
tutionally disproportionate.2 Again, without acknowledging
	2
       The court stated:
   	     “This Court, based upon the record before me, would find that [defendant]
   is of mild to moderate cognitive—or possesses a mild to moderate cognitive
   disability. That based upon the exhibits presented and the file materials
   that, [defendant], there is a danger to our community [in] placing you out in
   the community. I have, again, based upon this record, a great deal of respect
   for Mr. Watson’s program, and think that would be appropriate but for the
   Measure 11 sentence—or the Measure 11 guidelines that have been laid out
610	                                                           State v. Ryan

or indicating that it had considered defendant’s intellectual
disability in reaching its conclusion, the trial court then
stated that the sentence was not disproportionate. The court
therefore sentenced defendant to 75 months’ imprisonment
on the first-degree sex abuse conviction as to AS; the court
then sentenced defendant to a single consecutive term of six
months in prison for the three third-degree sex abuse con-
victions as to CS (concurrent with each other, but consecu-
tive to the 75-month sentence).
	       Defendant appealed, raising an as-applied chal-
lenge to the constitutionality of the 75-month prison sen-
tence on his first-degree sexual abuse conviction.3 As noted,
the Court of Appeals affirmed without opinion.
	        On review, defendant asserts, based on this court’s
framework for analyzing proportionality challenges under
Article I, section 16, that the trial court erred in failing to
sufficiently consider his intellectual disability in assessing
the proportionality of the Measure 11 sentence. Defendant
contends, based on the record here, that he deserved less
severe punishment than other defendants who commit
similar offenses and, consequently, that the mandatory
prison term was not properly proportioned to his offense.
Defendant also argues that the prescribed sentence is rela-
tively more severe punishment for him than for a normally-
abled offender because intellectually disabled offenders are
especially vulnerable to abuse and other adverse effects in
    by the Legislature as well as by the courts, particularly in Rodriguez/Buck.
    When considering the Oregon Constitution, specifically Article [I], [s]ection
    16 of the Oregon Constitution[,] as well as the Eighth Amendment of the
    U.S. Constitution as applied to you, [defendant], I do not find, under this
    record, that your sentence under Measure 11 shocks the conscience of this
    Court with regard to the underling factual admissions that have been made.
    It is a challenge for any court [when] the Legislature decides to remove the
    Court’s ability to fashion an appropriate remedy for somebody who possesses
    your background and disability, but I do believe that your—the analysis of
    Rodriguez/Buck that—and Measure 11, that I would have to find shocking of
    the conscience before I move into that, though I would hope that that would
    change, and I may be applying it inaccurately, that seems to be the out—the
    paradigm that has been laid out by the courts in light of Measure 11.
    	 “Therefore, though I would like to agree with [CS] in her statement
    that you should have treatment, I can’t order that treatment with regard to
    Measure 11.”
	3
       Defendant does not challenge his sentences on the third-degree sexual abuse
convictions.
Cite as 361 Or 602 (2017)	611

prison. In addition, defendant argued in his opening brief
on review that the trial court erred in its application of the
framework that this court set out in State v. Rodriguez/
Buck, 347 Or 46, 58, 217 P3d 659 (2009)—specifically, in
determining the gravity of his offense—by failing to con-
sider the availability of rehabilitative treatment for his dis-
ability.4 In light of those factors, defendant asserts that the
trial court erred in failing to properly consider his intellec-
tual disability in determining whether the Measure 11 sen-
tence was disproportionate.
	         In response, the state again acknowledges that defen-
dant’s individual characteristics—including his intellectual
disability—are relevant considerations in evaluating the
proportionality of his sentence. However, the state asserts
that “the availability of alternative treatment options is
completely irrelevant to an assessment of the gravity of the
offense; indeed, it has nothing to do with a particular defen-
dant’s culpability.” More generally, the state argues that
defendant’s focus on treatment is untenable because the
constitutional provisions on which he relies do not require
courts to choose the least restrictive means of protecting the
public, even when an offender is intellectually disabled. To
the contrary, the state argues, it is the legislature’s respon-
sibility to prescribe appropriate criminal sanctions, and the
state and federal constitutions afford it broad latitude in
doing so.
	         As the state sees it, defendant’s treatment-based
argument fails to take into account the sentencing objec-
tives of retribution and deterrence and, generally speaking,
would transform an objection to the constitutionality of a
mandatory sentence into a full-blown sentencing hearing.
Finally, the state urges, consideration of alternative treat-
ment options could yield inconsistent results for similarly
culpable offenders, based solely on whether appropriate
treatment happens to be available at a particular time or
place—an inconsistency, the state argues, that highlights
the fallacy of recognizing such a constitutional requirement.
It follows, the state asserts, that the sentencing court in this

	4
      As noted below, defendant’s arguments concerning the relevance of his
treatment evidence evolved later in his reply brief and at oral argument.
612	                                                State v. Ryan

case was not authorized to consider the availability of treat-
ment in determining whether the Measure 11 sentence was
constitutionally disproportionate.
	        Alternatively, the state notes that the residential
treatment program that defendant proposed was not cus-
todially secure and that it was not clear that the program
would be suitable for defendant. Under those circumstances,
the state argues, the prescribed sentence was not dispropor-
tionate. With the parties arguments thus framed, we turn
to defendant’s constitutional challenge under the Oregon
Constitution. See State v. Newcomb, 359 Or 756, 764, 375
P3d 434 (2016) (describing first-things-first approach).
                         II. ANALYSIS
A.  Article I, Section 16
       1.  Analytical framework
	         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.”
“For the most part, this court has analyzed the requirement
that penalties shall be proportioned to the offense” sep-
arately from the related prohibition on cruel and unusual
punishments. State v. Althouse, 359 Or 668, 683, 375 P3d
475 (2016). In considering the proportionality requirement,
this court ordinarily has asked whether the length of the
sentence would shock the moral sense of reasonable peo-
ple. Id. (citing, e.g., State v. Rogers, 313 Or 356, 380, 836
P2d 1308 (1992), cert den, 507 US 974 (1993) (death pen-
alty for murder committed during the course of attempted
first-degree sex abuse “would not shock the moral sense of
reasonable people”)). That standard “reflect[s] the principle
that the legislature has primary authority to determine the
gravity of an offense and the appropriate length of punish-
ment.” Id. at 683-84. Only in those rare instances when the
legislature has exceeded that authority may a court con-
clude that a particular punishment is unconstitutionally
disproportionate. Id. at 684.
Cite as 361 Or 602 (2017)	613

	In Rodriguez/Buck, this court considered (as in this
case) the as-applied constitutional challenges of two defen-
dants to Measure 11 sentences on single counts of first-degree
sexual abuse. 347 Or at 49. One defendant had touched a
13-year-old boy by bringing the back of his head against her
clothed breasts for a minute, and the other defendant had
caused his hand to touch the clothed buttocks of a 13-year-
old girl. On review, this court identified three factors that
bear on the proportionality inquiry:
   “(1) a comparison of the severity of the penalty and the grav-
   ity of the crime; (2) a comparison of the penalties imposed
   for other, related crimes; and (3) the criminal history of the
   defendant.”
Id. at 58.
	        In applying those factors to the cases before it, this
court in Rodriguez/Buck held that the trial court in each
case properly had declined to impose statutory minimum
sentences of 75 months’ imprisonment on the defendants’
convictions for first-degree sexual abuse. With respect to
the first factor, the court emphasized that the first-degree
sexual abuse statute, ORS 163.427(1), criminalizes a broad
range of conduct,
   “including, but not limited to, momentary touching of an
   intimate part without the victim’s awareness or knowl-
   edge, touching that the victim apprehends but does not
   appreciate as sexual, momentary touching over clothing,
   prolonged hand to genital contact, prolonged skin to skin
   genital contact, and, of course, forcing a person under 18 to
   engage in bestiality.”
Id. at 69 (internal quotation marks omitted).
	        Because some of that criminalized conduct is espe-
cially harmful (the court used the example of a 50-year-old
man forcing a 13-year-old girl to engage in prolonged skin-
to-skin genital contact with him), a mandatory prison term
of 75 months’ imprisonment for first-degree sexual abuse
does not, on the face of the statute, violate Article I, sec-
tion 16. Id. “But because the statute also encompasses con-
duct that reasonable people would consider far less harm-
ful, [the] defendants [were] entitled * * * to argue that the
614	                                            State v. Ryan

mandatory sentence, as applied to the particular facts of
their cases, [was] unconstitutionally disproportionate.” Id.
at 69-70 (emphasis omitted). In considering the defendants’
challenges, the court compared the defendants’ conduct with
other especially harmful conduct that also could be prose-
cuted as first-degree sexual abuse. Id. at 71. In tentatively
concluding (based on its assessment of the first factor) that
the defendants’ sentences were disproportionate, the court
remarked that the differences between the defendants’ con-
duct and that more harmful conduct—also punishable by
the same mandatory 75-month sentence—“is obvious to any
reasonable person.” Id.
	         Regarding the second factor, the court stated that,
“[i]f the penalties for more ‘serious’ crimes than the crime
at issue result in less severe sentences, that is an indication
that the challenged penalty may be disproportionate.” Id. at
63. The court noted that Oregon’s “elaborate listing of sex
offenses” provides a useful basis for comparing the conduct
constituting the crime and the penalty to other sex crimes,
although the inquiry should be limited to “other crimes that
have similar characteristics to the crime at issue.” Id. at 65.
The court cautioned that courts are not free to “roam * * *
through the criminal code, deciding which crimes are more
or less serious than others.” Id. at 64.
	        Finally, the court examined the criminal history of
each defendant. Neither of the defendants had prior convic-
tions, and, in the absence of Measure 11’s mandate, their
presumptive sentences for first-degree sexual abuse would
have been 16 to 18 months’ imprisonment. Id. at 77-78. Even
with a more serious criminal record of three or more person
felonies, the defendants would have received presumptive
sentences of 41 to 45 months in prison. Id. at 78. Taking
their criminal histories into account, as well as the other
two factors, the court held that imposing Measure 11 sen-
tences would have been unconstitutional under the circum-
stances. Id. at 79.
       2.  Standard of review
	        We review for legal error the trial court’s conclusion
that defendant’s sentence was constitutional under Article I,
Cite as 361 Or 602 (2017)	615

section 16. State v. Rangel, 328 Or 294, 298, 977 P2d 379
(1999). In conducting that review, we are bound by any find-
ings of historical fact that the trial court may have made, if
they are supported by evidence in the record. State v. Hall,
339 Or 7, 10, 115 P3d 908 (2005), abrogated on other grounds
by State v. Unger, 356 Or 59, 333 P3d 1009 (2014).
    3.  Defendant’s arguments on review
	        In this case, defendant does not argue that the man-
datory Measure 11 sentence was disproportionate based on
a comparison of the penalties imposed for other, related
crimes, and, apart from noting that he had only one crim-
inal conviction before committing the charged offenses in
this case, he makes no focused argument that his criminal
history weighs significantly in the proportionality calculus.
Instead, to reiterate, defendant has primarily focused on the
first Rodriguez/Buck factor and, indeed, more narrowly on
the extent to which—in comparing the gravity of his offense
and the severity of the prescribed penalty—the trial court
was required to consider his intellectual disability. As dis-
cussed above, as part of that argument, defendant urged
in his opening brief on review that the trial court erred in
its application of the Rodriguez/Buck framework—in deter-
mining the gravity of his offense—by failing to consider the
availability of rehabilitative treatment for his disability.
         a.  Intellectual disability
	        We begin with defendant’s overarching argument
that the Measure 11 sentence was disproportionate as applied
to him because of his intellectual disability. In addressing
that contention, we are guided by the analytical framework
set out in Rodriguez/Buck. In that case, this court stated
that, in addressing a proportionality challenge a sentencing
court may consider, among other case-specific factors, the
personal characteristics of the defendant as part of the first
Rodriguez/Buck inquiry. The full measure of the court’s
statement was this:
   “We therefore conclude that a defendant’s ‘offense,’ for pur-
   poses of Article I, section 16, is the specific defendant’s
   particular conduct toward the victim that constituted the
616	                                                              State v. Ryan

    crime, as well as the general definition of the crime in the
    statute. In considering a defendant’s claim that a penalty is
    constitutionally disproportionate as applied to that defen-
    dant, 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.”

Id. at 62. In short, the gravity of an “offense” refers to the
gravity of the defendant’s particular conduct and the statu-
torily defined crime itself. To the extent that an offender’s
personal characteristics influence his or her conduct, those
characteristics can affect the gravity of the offense. Id. at 63
(stating that, to determine whether penalty is proportioned
to gravity of offense, it is appropriate to consider gravity of
instant conduct in comparison with other criminal conduct
in light of relative harm to victims and society and offender’s
culpability).5
	         The question remains whether an offender’s intel-
lectual disability is such a characteristic and, if so, how it
should be considered. As the parties note, no Oregon case
has specifically addressed the application of Article I, sec-
tion 16, to a sentence for a crime committed by an intellectu-
ally disabled offender. However, the United States Supreme
Court has discussed relevant considerations in propor-
tionality challenges by intellectually disabled offenders
sentenced to death in capital murder cases, and other courts
applying the Eighth Amendment have considered the issue
with respect to mandatory prison sentences. Because the
test for proportionality under the Eighth Amendment is
similar to that under Article I, section 16, at least in its
comparison of the gravity of the offense and the severity of

	5
       This court’s reference in Rodriguez/Buck to “culpability” was taken from
the United States Supreme Court’s Eighth Amendment jurisprudence, which
we discuss in greater detail below. The term generally is used with reference to
“relative,” “diminished,” or “reduced” culpability. See, e.g., Atkins v. Virginia, 536
US 304, 317, 321, 122 S Ct 2242, 153 L Ed 2d 335 (2002) (prohibiting the death
penalty for persons with intellectual disabilities because of the reduced “relative
culpability of [intellectually disabled] offenders”); Roper v. Simmons, 543 US 551,
578, 125 S Ct 1183, 161 L Ed 2d 1 (2005) (prohibiting the death penalty for juve-
niles because of their “diminished culpability”).
Cite as 361 Or 602 (2017)	617

the penalty,6 we now consider the Supreme Court’s decisions
and the decisions of other courts following them insofar as
they may shed light on our path.
	        In 2002, the Supreme Court held that the Eighth
Amendment prohibits the execution of an intellectually
disabled offender. Atkins v. Virginia, 536 US 304, 122 S Ct
2242, 153 L Ed 2d 335 (2002). The Court initially observed
that “an IQ between 70 and 75 or lower * * * is typically
considered the cutoff IQ score for the intellectual function
prong of the mental retardation definition.” Id. at 309 n 5.
In the wake of Atkins, the Court has made clear that, even
for offenders who test above that cut-off IQ score, deficits in
the offender’s adaptive functioning are relevant to a deter-
mination of intellectual disability. See Moore v. Texas, ___
US ___, ___, 137 S Ct 1039, 1050, 197 L Ed 2d 416 (2017)
(requiring courts to “continue the inquiry and consider
other evidence of intellectual disability where an individ-
ual’s IQ score, adjusted for the test’s standard error, falls
within the clinically established range for intellectual-
functioning deficits”); see also Hall v. Florida, ___ US ___,
___, 134 S Ct 1986, 1990, 188 L Ed 2d 1007 (2014) (hold-
ing that it is unconstitutional to foreclose “all further explo-
ration of intellectual disability” simply because a capital
defendant is deemed to have an IQ above 70).
	        The Court in Atkins emphasized that “the American
public, legislators, scholars, and judges” had deliberated
over the question of the death penalty for the intellectually

	6
       See Rodriguez/Buck, 347 Or at 59-60 (discussing tests under Eighth
Amendment to the United States Constitution and Article I, section 16, of the
Oregon Constitution). The Supreme Court has identified three criteria for assess-
ing proportionality: the gravity of the offense as compared to the harshness of
the penalty; the sentences imposed on others in the same jurisdiction; and the
sentences imposed for the same offense in other jurisdictions. Solem v. Helm,
463 US 277, 292, 103 S Ct 3001, 77 L Ed 2d 637 (1983). The gravity of an offense
depends heavily on the nature and circumstances of a particular case, including
the harm or risk of harm, magnitude of the crime, degree of culpability of the
offender, motive, and any other facts specific to the offense. Id. at 292-94; U.S. v.
Young, 766 F3d 621, 626-27 (6th Cir 2014), cert den, ___ US ___, 135 S Ct 1475
(2015). In most cases under the Eighth Amendment, a gravity-versus-harshness
analysis will answer the question; only if a court reaches an initial inference of
gross disproportionality will it consider the other criteria. Harmelin v. Michigan,
501 US 957, 1004-05, 111 S Ct 2680, 115 L Ed 2d 836 (1991); Graham v. Florida,
560 US 48, 60, 130 S Ct 2011, 176 L Ed 2d 825 (2010).
618	                                                          State v. Ryan

disabled and had come to a consensus that it should be
prohibited. Atkins, 536 US at 307. The Court noted that,
although some states still imposed the death penalty on
intellectually disabled individuals convicted of heinous
crimes, the consistency of the direction of change was more
important than a simple numerical tally. Id. at 315. The
Court stated that the practice of executing the intellectu-
ally disabled was “uncommon,” id. at 316, but that evidence
of consensus, though important, did not “wholly determine”
the matter, insofar as the Court was required to bring its
own judgment to bear by asking whether there was reason
to disagree with the judgment reached by the citizenry and
its legislators, id. at 312-13.
	        The Court concluded that, for an intellectually dis-
abled offender, the case for retribution was diminished. Id.
at 319. Further, it stated, the rationale of deterrence was
diminished by the reduced ability of the intellectually dis-
abled “to understand and process information, to learn from
experience, to engage in logical reasoning, [and] to control
impulses.” 7 Id. at 320.
	        If left to case-by-case determinations, the Court
opined, there was “[t]he risk that the death penalty [would]
be imposed in spite of factors which may call for a less severe
penalty.” Id. at 320 (internal quotation omitted). The Court
explained:
    	 “Those [intellectually disabled] persons who meet the
    law’s requirements for criminal responsibility should be
    tried and punished when they commit crimes. Because of
    their disabilities in areas of reasoning, judgment, and con-
    trol of their impulses, however, they do not act with the
    level of moral culpability that characterizes the most seri-
    ous adult criminal conduct. Moreover, their impairments
    can jeopardize the reliability and fairness of capital pro-
    ceedings against [so diagnosed] defendants.”

	7
      By “deterrence,” we understand the Court to have meant the ordinary
meaning of the term: “the prevention of criminal behavior by fear of punishment.”
See Natalie Pifer, Is Life the Same As Death?: Implications of Graham v. Florida,
Roper v. Simmons, and Atkins v. Virginia on Life Without Parole Sentences for
Juvenile and Mentally Retarded Offenders, 43 Loy L Rev 1495, 1501 n 27 (2010)
(so describing the Court’s use of the term, quoting Black’s Law Dictionary 514
(9th ed 2009)).
Cite as 361 Or 602 (2017)	619

Id. at 306-07. Viewing an intellectually disabled offender’s
culpability in light of the “penological purposes served by
the death penalty,” the Court determined that such defen-
dants “should be categorically excluded from execution.”
Id. at 317-18. Concerning retribution, the Court found that,
because “severity of the appropriate punishment neces-
sarily depends on the culpability of the offender[,] * * * an
exclusion for the [intellectually disabled] is appropriate.”
Id. at 319. Culpability also was central to the Court’s deter-
mination that execution of the intellectually disabled did
not serve the penological purpose of deterrence, because
“it is the same cognitive and behavioral impairments that
make these defendants less morally culpable.” Id. at 320.
“Construing and applying the Eighth Amendment in the
light of our ‘evolving standards of decency,’ [the Court]
therefore conclude[d] that such punishment is excessive and
that the Constitution ‘places a substantive restriction on the
State’s power to take the life’ of [an intellectually disabled]
offender.” Id. at 321 (citation omitted).
	        Despite the Court’s pronouncements in Atkins
about the reduced justification for treating intellectually
disabled offenders the same as other offenders, lower courts
faced with Atkins-based challenges generally have held that
Atkins applies only to offenders otherwise subject to death
penalty sentences.8 Some of those decisions have not pro-
vided extended explanations for why the Atkins rationale
should not apply to true-life or other long-term prison sen-
tences, but, in general, they have relied on the notion that
the death penalty is fundamentally different from other sen-
tences. See, e.g., U.S. v. Shields, 480 F App’x 381, 389 (6th
Cir), cert den, ___ US ___, 133 S Ct 381 (2012) (so stating).
	        One commentator has explained the reluctance of
courts to extend the Atkins rationale beyond the death pen-
alty context in this way:
	8
       See, e.g., U.S. v. Gibbs, 237 F App’x 550, 568 (11th Cir), cert den, 552 US
1005 (2007) (holding that Atkins was inapplicable in the context of a sentence
that did not involve the death penalty); Harris v. McAdory, 334 F3d 665, 668
n 1 (7th Cir 2003), cert den, 541 US 992 (2004) (same); People v. Brown, 2012
Ill App 091940, 967 NE 2d 1004, 1022 (Ill App), rev den, 981 NE2d 995 (2012),
cert den sub nom Brown v. Illinois, ___ US ___, 133 S Ct 2795 (2013) (same);
Commonwealth v. Yasipour, 957 A2d 734, 744 (Pa Super Ct 2008), rev den, 602 Pa
658, 980 A2d 111 (2009) (same).
620	                                                 State v. Ryan

   	 “The conclusion that Atkins seems to play no role in
   non-capital sentencing should not, perhaps, be wholly sur-
   prising. It may be explained by the notion of incapacitation.
   After all, a disabled defendant spared death under Atkins
   is still imprisoned, likely for the rest of his life. Using the
   Atkins rationale in a non-capital sentencing situation may
   result in a defendant being imprisoned for a significantly
   shorter period of time. True, but if one believes what the
   Court wrote in Atkins about mentally disabled defendants
   being less culpable than others, such a result should be
   applauded, not avoided. And, if we are to be serious about
   the application of Atkins, sentencing statutes and guide-
   lines ought to expressly take account of intellectual disabil-
   ities, and sentencing judges should also be required to refer
   specifically to low intelligence of offenders in passing sen-
   tences. Such changes would be a welcome recognition of the
   wisdom of Atkins beyond the death penalty prosecution.”
Paul Marcus, Does Atkins Make a Difference in Non-Capital
Cases? Should It?, 23 Wm & Mary Bill Rts J 431, 465 (2014)
(footnote omitted). The author further observes:
   “Just about everyone working in the field who speaks to
   the matter seems to believe that the diminished intelli-
   gence of the offender ought to be a major factor in deter-
   mining appropriate sentences. And I do mean just about
   everyone[.]”
Id. at 456 (footnote omitted). Among those authorities is
the American Bar Association Criminal Justice Section.
See ABA Criminal Justice Standards Committee, ABA
Criminal Justice Mental Health Standards § 7-9.3, 472 (1989)
(“Evidence of mental illness or mental retardation should
be considered as a possible mitigating factor in sentencing
a convicted offender.”). See also OAR 213-008-0002(1)(a)(C)
(listing defendant’s reduced mental capacity as a potential
mitigating factor in sentencing).
	        We acknowledge the force of that view. The Supreme
Court in Atkins repeatedly emphasized the relevance of
intellectual disability in determining both the gravity of an
offense and the severity of its penalty, 536 US at 319-20,
and this court expressly stated in Rodriguez/Buck that an
offender’s personal characteristics are relevant in making
a proportionality determination, 347 Or at 62. Evidence
of an offender’s intellectual disability therefore is relevant
Cite as 361 Or 602 (2017)	621

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 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. See id. at 62-63.9
	         The question remains how that consideration should
affect the proportionality analysis. Because there exists a
broad spectrum of intellectual disabilities that may reduce,
but not erase, a person’s responsibility for her crimes, see
Atkins, 536 US at 318 (a defendant’s mental “deficiencies do
not warrant an exemption from criminal sanctions”), a one-
size-fits-all approach is not appropriate. For that reason,
a sentencing court’s findings, among other factual consid-
erations, 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 ultimate legal conclusion as to the
proportionality—as applied to the offender—of a mandatory
prison sentence. See id. at 319 (holding that “severity of the
appropriate punishment necessarily depends on the culpa-
bility of the offender”). The length of the prescribed prison
sentence also is relevant in determining the severity of the
penalty.10
	        In so concluding, we recognize the inherent ten-
sion between considering the personal characteristics of
an offender and other case-specific factors in conducting a
comparison of the gravity of an offense and the severity of
a penalty, and the principle that a proportionality review
must be “informed by objective factors to the maximum pos-
sible extent.” Harmelin, 501 US at 1000 (internal quotation
marks and citations omitted). Indeed, the metrics that are
available for making such comparisons are far from precise.
	90
       We emphasize that our holding applies only to intellectually disabled
offenders, not to other categories of offenders.
	10
       As discussed, defendant offered without objection expert testimony that
his disability would be adversely affected by a prison sentence. The state has not
contended that that evidence was irrelevant in determining the severity of the
prescribed Measure 11 prison sentence in this case.
622	                                                       State v. Ryan

See id. at 1001 (recognizing that Court “lack[ed] clear objec-
tive standards to distinguish between sentences for differ-
ent terms of years”); see also Solem v. Helm, 463 US 277,
294, 103 S Ct 3001, 77 L Ed 2d 637 (1983) (“It is clear that
a 25-year sentence generally is more severe than a 15-year
sentence, but in most cases it would be difficult to decide
that the former violates the Eighth Amendment while the
latter does not.” (Footnote omitted.)).11
	        However, those difficulties are inherent in a propor-
tionality test that asks whether a particular sentence for a
particular offender would shock the moral sense of reason-
able people. The fact that a comparison of the gravity of an
offense and the severity of its penalty involves factual con-
siderations does not mean that it is unmoored in principle.
Nor do challenges posed by the application of such a test
justify rejecting it. The Court in Solem and this court have
pointed to various factors that can be assessed relatively
objectively. In instructing a court to judge the gravity of the
offense, this court
   “assumes that courts are competent to judge the gravity of
   an offense, at least on a relative scale. In a broad sense, this
   assumption is justified, and courts traditionally have made
   these judgments—just as legislatures must make them in
   the first instance. Comparisons can be made in light of the
   harm caused or threatened to the victim or society, and the
   culpability of the offender.”

Rodriguez/Buck, 347 Or at 63 (quoting Solem, 463 US at
292-93).
          b.  Evidence of treatment options
	        We briefly turn to defendant’s more particularized
treatment-based argument. Before the Court of Appeals,
defendant argued that the trial court erred in failing to con-
sider evidence of “an available treatment option that would
be more effective and appropriate because of defendant’s
condition,” but defendant did not explain how that argument

	11
        For this reason, the Court has noted that successful Eighth Amendment
challenges to noncapital punishments are extremely rare. Harmelin, 501 US at
1001.
Cite as 361 Or 602 (2017)	623

comported with the Rodriguez/Buck framework. Later,
as noted, in his opening brief before this court defendant
argued that the availability of rehabilitative treatment as
part of an alternative sentence was relevant to the gravity
of his offense, but he has not sufficiently explained how that
argument comports with the Rodriguez/Buck framework to
permit a carefully considered analysis of it.12 Accordingly,
we decline to address it, and we express no opinion as to
whether and, if so, how consideration of treatment options
for an intellectually disabled offender as part of an alter-
native sentence could be relevant to a proportionality chal-
lenge under Article I, section 16.
                           III. APPLICATION
	        Defendant argued before the trial court, and he
has consistently argued on appeal and review, that the
prescribed Measure 11 sentence in this case was uncon-
stitutionally disproportionate as applied to him because
of his intellectual disability. For the following reasons, we
conclude that the trial court failed to sufficiently consider
defendant’s intellectual disability in addressing his propor-
tionality challenge.
	        As discussed, the undisputed evidence at sentenc-
ing showed that defendant is an intellectually disabled
offender who has an IQ score between 50 and 60, a full 10 to
20 points below the cutoff IQ score for the intellectual func-
tion prong of the intellectual disability definition recognized
in Hall. See ___ US at ___, 134 S Ct at 2000. Moreover, it is
undisputed that defendant has significantly impaired adap-
tive functioning, such that he functions—as it pertains to
standards of maturation, learning, personal independence,
and social responsibility—at an approximate mental age of
10, two years below the minimum age for establishing crim-
inal responsibility of a child under Oregon law. See ORS

	12
       In his reply brief on review, and later at oral argument, defendant con-
ceded that “evidence of a treatment program is difficult to fit perfectly into either
the gravity-of-offense or severity-of-punishment box.” Defendant then suggested
that the court should consider modifying the Rodriguez/Buck methodology in
cases involving intellectually disabled offenders to add a prong focusing more on
the characteristics of the offender than the offender’s conduct. We do not reach
that question: That argument came too late, and was not sufficiently developed,
to permit careful consideration of it in this case.
624	                                                            State v. Ryan

161.290(1).13 That legislative pronouncement is relevant
here 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.
Cf. Haugen v. Kitzhaber, 353 Or 715, 744, 306 P3d 592 (2013),
cert den, __ US __, 134 S Ct 1009 (2014) (citing Graham, 560
US at 61, for proposition that, in proportionality challenge
under Eighth Amendment, court considers “objective indicia
of society’s standards, as expressed in legislative enactments
and state practice to determine whether there is a national
consensus against the sentencing practice at issue”).
	        To be sure, the trial court generally noted defen-
dant’s intellectual disability, but, as discussed, the court did
not address its implications in rejecting his proportionality
challenge. That missing linkage is problematic, because it
suggests that, although the court appeared to grasp the
factual foundation of defendant’s argument, it did not fully
appreciate its constitutional implications.
	        In the absence of express findings, we ordinarily
would presume that the trial court resolved factual disputes
consistently with its ultimate decision. Ball v. Gladden, 250
Or 485, 487, 443 P2d 621 (1968). Thus, in the absence of
an indication that the court misapprehended the import of
defendant’s argument, we would (as noted above) review its
factual findings for sufficient evidence in the record, and
then determine whether the court correctly applied legal
principles to those facts. However, where, as here, the court
did not address defendant’s intellectual disability in com-
paring the gravity of defendant’s offense with the severity
	13
        That statute 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.”
	   By referring to ORS 161.290(1) as objective evidence of a societal standard,
we do not suggest that that statute directly applies to intellectually disabled
adults. Nor do we hold that ORS 161.290(1) precludes the imposition of criminal
responsibility on an intellectually disabled adult with a mental age lower than
that of a twelve-year-old. For example, on remand the sentencing court, after
considering evidence of defendant’s intellectual disability, may impose a lesser
sentence than the prescribed Measure 11 sentence if the court properly concludes
that the prescribed sentence is constitutionally disproportionate to the offense
based on evidence in the record.
Cite as 361 Or 602 (2017)	625

of the Measure 11 sentence, we would have to speculate to
conclude that the court properly considered that factor and
made any related factual findings with respect to it.14
	          As noted, evidence of defendant’s intellectual disabil-
ity, if credited, would establish that defendant’s age-specific
intellectual capacity, including his level of adaptive func-
tioning, fell below the minimum age level for the imposition
of criminal responsibility. Permissible inferences that the
sentencing court could draw from that evidence could affect
the court’s comparison of the gravity of defendant’s offense
with the severity of the prescribed penalty. Accordingly,
we must remand to the trial court for resentencing.15 In so
concluding, we do not suggest that defendant’s intellectual
disability is the sole determinant of whether the Measure
11 sentence would shock the moral sense of all reasonable
people. As discussed, other case-specific factors, including
the nature of defendant’s conduct, its effect on the victim,
and the length of the prescribed sentence, also are relevant
considerations in making the proportionality comparison
under Rodriguez/Buck. 347 Or at 62. In short, this opinion
should not be taken to imply that the proper consideration
of defendant’s intellectual disability necessarily would lead
to a different sentence. Because different inferences could
be drawn from the evidence, that is a decision, in the first
instance, for the trial court.
	       As stated above, we hold only that the trial court
erred—in comparing the gravity of defendant’s offense and
the severity of the Measure 11 sentence under the first
Rodriguez/Buck factor—in failing to consider evidence of
	14
        As discussed, the evidence pertaining to defendant’s intellectual disability
was relevant both to the gravity of his offense and the severity of the penalty for
it.
	15
        We emphasize that our decision stands for the limited proposition that, in
certain circumstances where the record suggests that the trial court misappre-
hended the import of the defendant’s proportionality challenge, we may vacate
and remand for the court to consider the relevant factors in the first instance.
Vacating and remanding for a trial court to resentence the defendant in those
circumstances is appropriate because we would have to speculate as to whether
the court properly considered the relevant case-specific factors and made any
necessary factual findings. See State v. Sanderlin, 276 Or App 574, 576-77, 368
P3d 74 (2016) (Court of Appeals vacated and remanded for resentencing because
the trial court had concluded that it was not permitted to consider the defendant’s
“mental problems” in assessing the proportionality of the sentence).
626	                                                  State v. Ryan

defendant’s intellectual disability when that evidence, if
credited, would establish that the sentence would be argu-
ably unconstitutional because it shows that defendant’s age-
specific intellectual capacity fell below the minimum level of
criminal responsibility for a child.16
	        The decision of the Court of Appeals is affirmed
in part and reversed in part. The judgments of conviction
are affirmed, but the sentences are vacated, and the case is
remanded to the circuit court for resentencing, in a manner
consistent with this opinion.
	        BALMER, C. J., concurring.
	        I agree with the majority’s conclusion that, on this
record, where defendant introduced undisputed evidence of
his intellectual disability and of his intellectual functioning
as similar to that of a 10-year-old, it was error for the trial
court not to consider that evidence in determining whether
the imposition on him of the mandatory Measure 11 sen-
tence for first-degree sex abuse was disproportionate under
Article I, section 16, of the Oregon Constitution.
	        Defendant advanced a broad theory that a defen-
dant’s “reduced culpability” or “blameworth[iness]”—because
of intellectual disability (as in this case) or youth or, pre-
sumably, mental illness or other individual factors affecting
judgment and conduct—is always relevant in determining
whether a mandatory sentence is constitutionally dispropor-
tionate. I disagree with that theory, for reasons discussed
below, but the majority takes a narrower and more defensi-
ble approach.
	       Two related aspects of the majority opinion are
particularly significant to me. First, a diagnosis of intellec-
tual disability has been relied upon by the United States
Supreme Court and by this court as a factor to be consid-
ered in determining whether a defendant may be subject
to the death penalty. Atkins v. Virginia, 536 US 304, 122
S Ct 2242, 153 L Ed 2d 335 (2002); State v. Agee, 358 Or
325, 364 P3d 971 (2015), adh’d to as modified on recons,
	16
     Our conclusion makes it unnecessary to consider defendant’s Eighth
Amendment challenge.
Cite as 361 Or 602 (2017)	627

358 Or 749, 370 P3d 476 (2016). Second, to respond to the
obvious rejoinder that no court has extended the Atkins
rationale to conclude that imprisonment for a term of years
(mandatory or not) is unconstitutionally cruel or dispropor-
tionate, see, e.g., Harris v. McAdory, 334 F3d 665, 668 n 1
(7th Cir 2003), cert den, 541 US 992 (2004), the majority
relies on ORS 161.290(1), which provides, “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.” That statute
expresses a kind of societal consensus, recognized by legis-
lative enactment, that children under the age of 12 lack the
maturity that would permit the state to charge and punish
them as adults. The majority, of course, does not argue that
ORS 161.290(1) precludes all punishment of defendant, or
of children under the age of 12.
	        Here, defendant not only presented expert testimony
that he is intellectually disabled, but also introduced undis-
puted evidence that, because of his low IQ score and signifi-
cantly impaired adaptive functioning, his intellectual func-
tioning is at a mental age of approximately 10. Defendant,
of course, was an adult at the time of his crime, and was
considered competent to stand trial, so ORS 161.290(1) does
not absolve him of criminal responsibility for his conduct.
With that statute as a marker for “criminal responsibility,”
however, it would be anomalous for the sentencing court
not to at least consider defendant’s intellectual disability in
determining whether the mandatory Measure 11 sentence
of 75 months is disproportionate under Article I, section 16,
as applied to him. For that reason, in the specific circum-
stances presented here, I agree with the majority.
	        It is important, however, to respond to defendant’s
broader argument about relative culpability in sentencing
and to explain why that argument, although appropriate in
establishing sentencing policy or imposing a particular sen-
tence within legislative parameters, will rarely be sufficient
to support an as-applied constitutional challenge under
Article I, section 16.
	       I agree with defendant that a just and nuanced sen-
tencing policy would give a judge at least some discretion,
628	                                                             State v. Ryan

in imposing a criminal sentence, to take into account per-
sonal characteristics, including intellectual disability, and
the possibility that an intellectually disabled person may
be less morally culpable in some sense for his or her crim-
inal conduct than a person whom defendant describes as
“normally abled.” In my view, the legislature should revisit
the statutes that prevent courts from considering, when
imposing a Measure 11 sentence, intellectual disability,
youth, immaturity, or other mental or psychological lim-
itations that may affect behavior.1 Appropriate legislation
would give the courts discretion to impose a sentence more
tailored to a particular defendant and crime, rather than
imposing the current mandatory minimum sentence; and
perhaps also could provide additional guidance as to the
kinds of personal characteristics that may affect a defen-
dant’s legal culpability and, if reduced culpability is found,
the relationship between that reduced culpability and the
kind of sentence that would be proportionate to the defen-
dant’s offense.
	        But that is not the sentencing law that the people
and the legislature have put in place for Measure 11 offenses,
such as the 75-month mandatory minimum sentence for
first-degree sexual abuse that the court imposed on defen-
dant here. Oregon’s statutory sentencing provisions for
Measure 11 offenses permit only the most limited consider-
ation of personal characteristics, degree of culpability, miti-
gating facts, or the impact of the Measure 11 sentence on a
particular defendant.

	1
       In State v. Wheeler, 343 Or 652, 175 P3d 438 (2007), we reviewed in detail
Blackstone’s influential support for the concept of proportionality, noting his view
that because of the “difficulty of ensuring that punishments are proportional
* * * deference should be granted to the legislature’s choices.” Id. at 659; see also
id. (“ ‘[T]he quantity of punishment can never be absolutely determined by any
standing invariable rule; but it must be left to the arbitration of the legislature
to inflict such penalties as are warranted by the nature of laws and society[.]’ ”
(quoting William Blackstone, 4 Commentaries on the Laws of England 12 (1769)));
see generally Thomas A. Balmer, Some Thoughts on Proportionality, 87 Or L Rev
783, 787-89 (2008) (discussing Blackstone’s views on proportionality). While I
agree with this court’s decisions holding specific sentences unconstitutional as
applied to particular defendants and offenses, Blackstone’s argument that courts
ordinarily should defer to the legislature with respect to the penalties for specific
crimes has always found strong support in the Oregon cases and remains persua-
sive. See Balmer, 87 Or L Rev at 809-10, 816-17 (discussing roles of legislature
and courts in application of Article I, section 16).
Cite as 361 Or 602 (2017)	629

	        As a consequence, defendant must rely solely on the
claim that his sentence was not “proportioned to the offense”
and therefore was unconstitutional under Article I, section
16, as interpreted in State v. Rodriguez/Buck, 347 Or 46,
217 P3d 659 (2009). And defendant’s basic assertion is that
a court imposing a substantial, mandatory sentence must
consider, in applying Article I, section 16, any personal char-
acteristics “that mitigate[ ] culpability.” Here, of course, the
individual characteristic at issue is intellectual disability,
but defendant also argues that “youth” or “adolescence” is
such a characteristic and the Court of Appeals has said the
same about “mental problems” caused by strokes. State v.
Sanderlin, 276 Or App 574, 576, 368 P3d 74 (2016). Indeed,
nothing in defendant’s logic suggests any limit on the kind
of personal characteristic that would “mitigate culpability,”
and the category would seem to include any intellectual, psy-
chological, or other condition that might affect a defendant’s
judgment, mental state, or conduct. I agree that, in many
circumstances, such factors probably should be considered
in determining an appropriate sentence—and would be in
a more rational sentencing scheme than Measure 11—but
that does not mean that such consideration is constitution-
ally required.
	        Moreover, defendant offers no suggestion as to what
the constitutionally required metric would be for determin-
ing the “lesser degree of culpability” that would lead to a
lesser sentence for a person with such reduced culpability,
compared to any other person who committed the same acts.
And, assuming that such a person is less culpable in some
legal sense, defendant is silent on the metric or standard
for determining how the Measure 11 sentence should be
adjusted (and presumably reduced) to reflect that lesser cul-
pability and render the sentence constitutionally valid.
	        To show why defendant’s underlying theory is prob-
lematic as a constitutional argument requires a brief review
of our Article I, section 16, cases. This court repeatedly has
emphasized that “the legislature has primary authority to
determine the gravity of an offense and the appropriate
length of punishment,” State v. Althouse, 359 Or 668, 683-84,
375 P3d 475 (2016), and that it will only be “in rare circum-
stances” that a court will find that a legislatively prescribed
630	                                             State v. Ryan

penalty violates Article I, section 16, State v. Wheeler, 343
Or 652, 670, 175 P3d 438 (2007). Rodriguez/Buck was one of
those rare cases, and defendant understandably relies pri-
marily on that case. In Rodriguez/Buck, this court engaged
in a detailed review of the defendants’ specific acts and a
comparison of those acts with the acts of other defendants
convicted of the same offense (first-degree sexual abuse, ORS
163.427). It also compared defendants’ acts with acts that
would constitute other sex crimes, as well as the sentences
for those crimes. 347 Or at 63-65, 67-76. This court concluded
that the mandatory 75-month sentences imposed for each
defendant’s single conviction for first-degree sexual abuse,
when defendants had no prior criminal history of any kind,
were constitutionally disproportionate as applied to those
defendants. Id. at 78-80. In deciding that case, this court
identified several factors to consider in making that consti-
tutional determination, including “a comparison of the sever-
ity of the penalty and the gravity of the crime.” Id. at 58.

	        Defendant focuses solely on that factor and, in par-
ticular, on the “gravity of the crime.” But his argument goes
substantially beyond anything in Rodriguez/Buck. There,
this court grappled with the term “offense” in Article I, sec-
tion 16, because establishing the relative seriousness—or
gravity—of the offense is necessary to determine whether
the penalty is proportionate. Id. at 59. The court described
the “offense” as “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.” Id. at 62. That
definition made no mention of any required level of culpabil-
ity or mental state, other than its implicit reference to the
mental state required to prove the crime at issue. The court
listed a number of considerations that could be appropriate
in determining the “offense” in any specific case, including
“the specific circumstances and facts of the defendant’s con-
duct,” “characteristics of the defendant and the victim, the
harm to the victim, and the relationship between the defen-
dant and the victim.” Id.

	        As noted, defendant’s argument appears to extend
the constitutional inquiry to include any personal “charac-
teristic” that might “mitigate” a defendant’s “culpability.”
Cite as 361 Or 602 (2017)	631

Although it may be entirely appropriate, as matter of policy
or logic, to examine all of a defendant’s personal “character-
istics” to determine whether a defendant might be consid-
ered “less culpable” than one without those characteristics,
Rodriguez/Buck certainly did not so hold, nor has any other
case from this court.2 Instead, we ordinarily have focused
on objective factors, such as the defendant’s actual conduct.
In Rodriguez/Buck, for example, the defendants, like defen-
dant here, engaged in conduct that came within the terms
of the statutory definition of first-degree sexual abuse. Id. at
55-56. They did not claim to be “less culpable” because of any
personal characteristic; rather, they argued that the actual
conduct they engaged in was so limited, particularly com-
pared to the conduct in other reported first-degree sexual
abuse cases and to conduct under other sexual abuse stat-
utes for which similar mandatory sentences are imposed,
that the 75-month sentences were disproportionate as
applied to their crimes. Id. at 57. Rodriguez/Buck does not
discuss either personal characteristics or degrees of culpa-
bility at all. Similarly, in State v. Davidson, 360 Or 370, 380
P3d 963 (2016), we held a criminal sentence to be dispro-
portionate based on a detailed review of the specific conduct
and its relatively limited impact on the victims, again with
no discussion of how the defendant’s mental state or other
psychological factors might have reduced his “culpability.”

	         Defendant’s argument for an expansive view of
individual characteristics that may mitigate or reduce a
person’s “culpability” compared to others who engage in
the same conduct, despite its theoretical appeal, also would
encounter serious obstacles in application. Of course, culpa-
bility, or mens rea, has played a role for thousands of years
in thinking about proportionality. See Thomas A. Balmer,
Some Thoughts on Proportionality, 87 Or L Rev 783, 785-86
(2008) (discussing history of mens rea in proportionality).
Every defendant’s mental state is critical in determining

	2
       I recognize that the majority suggests at one point that, to the extent “per-
sonal characteristics” influence conduct, they may support a determination of
“reduced” culpability. 361 Or 616. As discussed, however, the majority’s actual
holding in this case rests on defendant’s well-recognized diagnosis of intellectual
disability and the evidence that his intellectual functioning is at the level of a
10-year-old and therefore below the age of criminal responsibility in Oregon.
632	                                            State v. Ryan

what crime they have committed, or whether they have
committed any crime at all. The same conduct—for exam-
ple, killing another by running over the person with a car—
might constitute murder or even aggravated murder, first or
second degree manslaughter, criminally negligent homicide,
or aggravated vehicular homicide, or no crime at all, depend-
ing on the defendant’s culpability. To differentiate levels of
culpability, our criminal code defines different mental states,
see ORS 161.085, and specifically defines “culpable mental
state” to mean “intentionally, knowingly, recklessly, or with
criminal negligence,” as those terms are used in that stat-
ute. ORS 161.085(6). That scheme generally imposes more
serious penalties for the same conduct when the wrongdoer
acts “intentionally” or “knowingly,” as opposed to acting
negligently. In those circumstances, it is not inaccurate to
say, informally, that the wrongdoer who acted intentionally
was “more culpable” than the person who was negligent. See
Solem v. Helm, 463 US 277, 292-93, 103 S Ct 3001, 77 L Ed
2d 637 (1983) (discussing “culpability” by similarly examin-
ing the “seriousness” of the criminal conduct and statutory
mental states).
	        Similarly, as discussed, our criminal code provides
that a child who is tried as an adult for conduct that occurred
before the child was 12 “is not criminally responsible” and
may assert a defense of “incapacity due to immaturity.” ORS
161.290. And if a person, as a result of a mental disease or
defect, commits a criminal act but, at the time, “lacks sub-
stantial capacity either to appreciate the criminality of the
conduct or to conform the conduct to the requirements of
law,” that person will be found “guilty except for insanity,”
ORS 161.295, and will be subject to different sanctions than
a person without such a mental disease or defect.
	        Thus, the criminal code, arbitrary as it may be in
some particulars, itself establishes specific levels of “culpa-
bility” depending upon a defendant’s mental state, includ-
ing lack of culpability for certain children and for those
with certain mental diseases or defects. Those gradations
are important to the criminal code’s stated purposes and
principles, which include “prescrib[ing] penalties which
are proportionate to the seriousness of offenses.” ORS
161.025(1)(f); see also ORS 161.025(1) (identifying other
Cite as 361 Or 602 (2017)	633

purposes and principles of the criminal code). If the stat-
utes defining criminal offenses and the sanctions for them
did not differentiate between crimes based, at least in part,
on the different levels of “culpability”—if, for example, the
death penalty were imposed for intentionally running over
and killing another and also for running over and killing
another without any intent to harm—the defendant in the
latter case would have a reasonable argument that the
death penalty, as applied to him or her, was not proportion-
ate to the offense. But our statutes expressly include differ-
ent, carefully defined culpable mental states.
	         It is true that in Solem and a handful of other cases,
the Supreme Court has referred to the concept of “relative
culpability” in reviewing prison terms to determine whether
they were so excessive as to be unconstitutional. But, like
Rodriguez/Buck and Davidson, those decisions had nothing
to do with psychological or mental conditions or any other
personal characteristic that excused or mitigated the defen-
dant’s conduct. Solem involved a defendant’s conviction for a
passing a bad check for $100. Under South Dakota’s sentenc-
ing laws, because of the defendant’s prior convictions—“all
relatively minor” offenses, according to the Court, 463 US at
296-97—he was sentenced to life in prison without the pos-
sibility of parole. Solem had nothing to do with “relative cul-
pability” based on the defendant’s mental condition and did
not even use that term. Rather, the discussion of culpability
in Solem emphasized that the “gravity of an offense” turns
primarily on the “harm caused or threatened” and “the cul-
pability of the offender.” Id. at 292. As to the first, the Court
noted that “there are widely shared views as to the rela-
tive seriousness of crimes,” which are reflected in criminal
statutes that generally treat nonviolent crimes as less seri-
ous than violent crimes and attempts as less serious than
completed crimes. Id. at 292-93. As to the culpability of an
offender, the Court noted the “clear distinctions that courts
may recognize and apply,” cited various state statutes defin-
ing mental states, and observed, “Most would agree that
negligent conduct is less serious than intentional conduct.”
Id. at 293. It was based on those factors that the Court found
the defendant’s offense to be so lacking in gravity, compared
to sentences for other crimes and other offenders, that his
634	                                              State v. Ryan

life sentence without possibility of parole was unconstitu-
tionally disproportionate. Id. at 296-304. Solem provides no
support for defendant’s argument that one defendant should
be considered “less culpable” than another who engaged in
the same criminal conduct, because of the former’s “personal
characteristics.”
	        Under defendant’s approach, there would be little, if
any, limit to the factors that a judge or court could consider in
determining whether a sentence was disproportionate under
Article I, section 16. Defendant cites and relies on State v.
Lyle, 854 NW2d 378 (Iowa 2014), which held that manda-
tory minimum sentences for juvenile offenders were uncon-
stitutional under the state’s cruel and unusual punishment
clause, and, under defendant’s theory, age—at least below
the age of majority—would be another basis for asserting
“reduced culpability.” Also, at the very least, it would appear
that defendant’s argument would apply to persons suffering
from mental illness; persons who were abused as children
or for other reasons have disorders that cause them to lack
empathy with the victims of their crimes; or persons in their
late teens or early 20s whose brains have not developed to
the extent that they can properly evaluate risks, understand
the full impact of their conduct on victims, or conform their
conduct to laws and other social norms. That open-ended
review of the constitutionality of a sentence mandated by
statute is unlikely to have been intended by the framers of
Article I, section 16, and the majority wisely adopts a nar-
rower approach.
	        Again, I agree with defendant that courts should
have greater discretion than they do in various aspects of the
sentencing process, including consideration of age, maturity,
psychological condition, and other factors. The mandatory
sentences required by Measure 11 should be revisited and
revised to allow judges, within reasonable parameters and
based on specific factors, greater flexibility to impose sen-
tences that are more appropriate to the defendant, the vic-
tim, and the crime. The requirement of Article I, section 16,
that the penalty be proportioned to the offense has a role to
play in rare cases, but it is of limited utility in ensuring that
criminal sentences are appropriate in the great majority of
cases.
Cite as 361 Or 602 (2017)	635

	       Instead of defendant’s sweeping theory, the major-
ity adopts a narrow, but principled, approach to the issue
presented in this case, and I concur in that opinion.
	       Kistler and Landau, JJ., join in this concurrence.
