A Hillsboro man’s sentence of life in prison without parole after his sixth conviction for public indecency — the latest for masturbating while on a MAX train in Washington County — did not violate the U.S. Constitution’s prohibition against cruel and unusual punishment, a federal appellate court has ruled.
A three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed Oregon U.S. District Judge Ann Aiken’s decision that Terry E. Iversen’s sentence was not grossly disproportionate to his offense.
“This sentence is not constitutionally infirm in light of the gravity of Iversen’s offense and criminal history,” the opinion said.
Iversen was prosecuted in Washington County Circuit Court and sentenced to life in prison without parole in 2017 after he pleaded guilty to his sixth conviction for public indecency. He also had prior convictions for third-degree rape of a 15-year-old girl and first-degree sodomy of a 12-year-old girl.
At the time of his 2017 sentencing, he admitted to three factors that led to his sentencing enhancement: his history showed “persistent” involvement in a similar crime; prior sanctions had not deterred him from committing new crimes; and he was on supervision for a prior conviction at the time of his latest public masturbation offense.
Under Oregon state law, Iversen’s sixth public indecency conviction, together with his prior felony convictions for rape and sodomy, triggered a presumptive life without parole sentence under an Oregon sex offender recidivism statute, the appellate court found.
Iversen’s lawyers, Oregon Chief Deputy Federal Public Defender Stephen R. Sady and Assistant Federal Public Defender Tihanne K. Mar-Shall argued that people convicted of much more serious crimes, including murder, receive substantially lower sentences in Oregon. They also argued that Iversen’s “mental illness” triggered his repeated public indecency.
“Life without parole for the relatively minor conduct underlying the offense of conviction – showing his penis in public – does not merit being condemned to die in prison, regardless of prior convictions,” they wrote in court briefs. “The offense conduct categorically constitutes a misdemeanor in the absence of recidivism. The conduct does not involve physical contact with others and has no common law roots as a serious offense. This is the extreme case of gross disproportion triggering the special constitutional protection for sentences to life without parole.”
But the federal appellate court found that the state court had considered Iversen’s multiple felony convictions, acknowledged his mental health record and failure to reform, recognized that the state’s public safety interest in “incapacitating and deterring” repeat felons was a legitimate goal and picked a sentence that adhered to Oregon’s sex offender recidivism law.
Washington County Circuit Judge Oscar Garcia told Iversen at his last sentencing that he had been given many opportunities to change but had failed to do so.
“All we can do is incarcerate you because that’s the only thing that works from preventing you to offend again,” Garcia said.
Iverson’s case was unlike a 2008 case heard by the 9th U.S. Circuit Court of Appeals, which reversed a 28-year prison term for a convicted sex offender in California who faced the more than two-decade prison term under the state’s three strikes law of failing to register his change of address as required by the state’s sex offender registration law. In that case, the federal appellate court found the lengthy prison term grossly disproportionate to the offense because the crime was a “technical violation” of the registration law and “harmless.”
In contrast, “Iversen was not convicted of a harmless regulatory offense. Instead, he was convicted of public indecency for the sixth time. This is in addition to his extensive history of sex offenses,” the 9th Circuit Court panel ruled.
“While some fair-minded jurists may disagree on the correctness of Iversen’s LWOP (life without parole) sentence, the Oregon state court’s decision concerning his sentence is not contrary to the Supreme Court’s Eighth Amendment jurisprudence.”
U.S. District Judge Frank Montalvo, of the Western District of Texas, was among the three-judge panel for the 9th Circuit that heard the case. Joining him on the panel were Circuit Judges Jacqueline H. Nguyen and Eric D. Miller. Montalvo wrote the opinion.
