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Revisiting Them in Light of the Simonson Opinion

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by: Ryan • July 3, 2011 • no comments

In St v. Simonson, the Court of Appeals held that it violated Article I, section 16, of the Oregon Constitution (the proportionality clause) to require a grid block of 7 for sexual abuse II when the grid block of the more serious crime of rape III is a mere 6. The Simonson court noted that this absurdity "make[s] this case a textbook example for the application of the principle of vertical proportionality: Defendant's acts in committing sexual abuse in the second degree necessarily are less severe than the same acts would have been if defendant's victims had been younger, but the potential penalty for defendant's acts is greater than the potential penalty for the same acts against younger victims."

The problem with "textbook examples," however, is that they don't expand the law. That is, there's no proportionality problem that is apparent post-Simonson that wasn't already apparent before the opinion issued.

Still, this gives us the opportunity to revisit a number of crimes that do in fact have proportionality problems.


Promoting Prostitution

Subsection (d) states that a person commits the crime of Promoting Prostitution if the person knowingly, "engages in any conduct that institutes, aids or facilitates an act or enterprise of prostitution."

Subsection (d) mirrors the language of the Aiding and Abetting statute, ORS 161.155, which states in part that a person is criminally liable for a crime if they aid and abet the crime with the intent to "facilitate" the crime. Therefore, a person guilty of committing the crime of Promoting Prostitution under ORS 167.012(1)(d), a Class C felony, is simultaneously guilty of Prostitution, a Class A misdemeanor.

It violates the disproportionality clause of the Oregon Constitution to sentence someone more harshly for aiding and abetting a crime than being the primary actor in that crime. For example, if a "john" solicits an act of prostitution, he is guilty of the Class A misdemeanor. If prior to soliciting the prostitute, the "john" walks up to a stranger on the street and says, "where can I find a prostitute?" and the stranger says, "You can find one on Sandy Boulevard," the stranger is guilty of aiding and abetting an act of prostitution, and therefore guilty of Promoting Prostitution, a Class C felony, and a level-8 on the sentencing grid. This is an absurdity with constitutional implications.

When two statutes are applied to the exact same prohibited behavior, and one is a misdemeanor and one a felony, they cannot both "bear the appropriate 'comparative relation' to the severity of that crime." Wheeler at 677.

Theft by Selling

If you take property worth $500, you are guilty of a misdemeanor but if you are found with the stolen property the next day, you are guilty of a felony (theft by receiving) and if you return the $10 hand lotion to the store where you took it, in order to get a refund, you are guilty of a felony (theft by selling). The proportionality problems this creates are Theft by Selling and the Proportionality Paradox .

Misdemeanor P/V revocations

Getting revoked on a misdemeanor probation can result in substantially greater time than getting revoked on a felony probation violation. The discussion of that issue - including a motion - is here.

Possession of a Precursor Substance with the Intent to Manufacture

Such possession is a 6 on the grid, whereas actually manufacturing methamphetamine - absent substantial quantity or CDO factors - is usually a 4.

Online Sexual Corruption

Under Oregon law, it may often be better - or at least no worse - to actually have sex with a minor than to extend an invitation to have sex with a minor.

Online sexual corruption II is a 6 CSL. In other words, attempting sexual contact over the internet to someone the defendant thinks is 15 - which would be attempted rape in the 3rd degree if the defendant attempted intercourse rather than merely sexual contact - is a 6, but actually having sex with a 14 or 15 year old is also a 6. (Attempted rape III would be a 4 CSL.)

Moreover, you can still be guilty of online sexual corruption if you extend the invitation to a police detective that you think is a minor. To the extent that the law - through its varying degrees of punishment - instructs criminals how to commit crimes so as to minimize the consequences, in Oregon, those people who want to have sex with 15 year olds are better off going to the mall or the skateboard park than going to a chatroom.

Identity Theft

Aggravated identity theft involves being guilty of 10 or more identity thefts over a certain period of time. But the sentence that could be imposed on ten (or nine or 5) counts of identity theft will often be substantially greater than you could receive on one count of aggravated identity theft. Because aggravated identity theft requires ten counts of identity theft, a defendant who commits 5 counts of ID Theft is better off if his criminal behavior is twice as bad, so he could be charged with aggravated ID Theft. This is another "textbook example" of a proportionality problem.