A Comment on Speedis and Non-Enumerated Aggravating Factors
by: Jessbarton • June 29, 2011 • no comments
Today the Supreme Court issued its decision in State v. Speedis, 350 Or ___, ___ P3d ___ (June 30, 2011). That case involves claims that "to the extent the sentencing guidelines permit the use of nonenumerated aggravating factors, they either violate the separation of powers provision of the Oregon Constitution or are vague in violation of the Oregon and the United States Constitutions." 350 Or at ___ . For more information about these claims, see Felony Sentencing in Oregon: Guidelines, Statutes, Cases §§ 7-4.3.12 and 7-4.3.12.1 (OCDLA 2d ed. 2008).
Pendleton attorney Robert Klahn represented Speedis at trial. OPDS attorney Meredith Allen represented Speedis on appeal. On behalf of Pacific Sentencing Initiative, LLC, I filed an amicus curiae brief aligned with Speedis's interests. Sadly, the court rejected his claims.
Fortunately, the opinion is not all bad, in that it doesn't address so leaves to another day decisions on four issues.
First, all of the non-enumerated factors at issue in Speedis are "offender-specific"-that is, they focus on the character of defendant Speedis, rather than on characteristics of his crimes (in which case they would be "offense-specific"). When the court rejected Speedis's state constitutional vagueness claim, it limited its holding as follows:
Our state constitutional vagueness holding is limited to sentencing and, within that context, to sentencing factors that bear on a defendant's character. We have no occasion to consider whether greater specificity would be required either for a statute defining the elements of an offense or for sentencing factors that relate to the offense rather than the offender.
350 Or at ___ n 14 (emphasis added).
Because the court's decision does not dictate the outcome of attacks on "offense-specific" non-enumerated factors, state constitutional vagueness-based attacks on such factors are still "in play." See Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000) (explaining breadth of stare decisis doctrine). In that context, the defense bar should continue to raise the claims.
Second, all of the non-enumerated factors at issue in Speedis were sanctified by reported, Court of Appeals decisions issued before the date of Speediss crimes. Rejecting Speediss federal constitutional claim, the court held, "Even if the sentencing guidelines, standing alone, would not provide sufficient notice that those factors would justify an enhanced sentence, those [preexisting, sanctifying] appellate decisions did and, in doing so, satisfied due process." 350 Or at ___.
This rejection leaves open a key question: What about non-enumerated aggravating factors that were not sanctified by reported appellate decisions issued before the date of a defendant's crimes? Because Speedis's case did not involve such factors, the Supreme Court did not (because it could not) answer that question. Therefore, federal constitutional vagueness-based attacks on such factors are still "in play," so in that context the defense bar should continue to raise them. See Stranahan.
This means that any time a grand jury indicts on or a prosecutor gives notice of non-enumerated factors, defense counsel should raise the federal vagueness claim. This should force the prosecution to cite the reported appellate decisions that sanctify the factors. Counsel then should review the decisions to determine (i) whether they do in fact sanctify the factors at issue, and (ii) whether they were in fact issued on or before the date of the defendant's crimes.
If the answer to either of those inquiries is "no," then the federal vagueness claim could prevail. This point is hugely significant. This federal vagueness claim would establish that although previously sanctified non-enumerated factors are valid, any new factors would be void for vagueness. This would bar the creation of any more non-enumerated factors.
Third and fourth, presumably because Speedis's case involved only previously sanctified non-enumerated factors, he did not present the ex post facto and bill of attainder claims of the sort that are discussed in Section 7-4.3.12.1 of Felony Sentencing in Oregon. Because he did not present those claims, the court did not decide them and they remain are still "in play." See Stranahan.
As you can see, the Supreme Court did not give us what we wanted in Speedis, but neither did it completely foreclose our ability to challenge non-enumerated aggravating factors. The court left many of our claims unresolved, so our work in this area is far from over.
