Misdemeanor Sentences Longer than Felonies
by: Ryan • January 17, 2011 • no comments
In Rankin's excellent essay, he pointed out the possible constitutional infirmity in allowing - as Oregon does - misdemeanor sentences to be longer, in some cases, than the sentences for felony versions of the same crime. I wanted to ride on his coattails to add a couple of observations.
In State v. Rice, 114 Or App 101 (1992), the Court of Appeals found that it did not violate the proportionality clause merely because a felony conviction required a probationary sentence and there was no such requirement for a misdemeanor. In sum, the Rice court found that comparing the mandatory probation sentence of a felony to the jail sentence of a misdemeanor as comparing apples to oranges. In a subsequent discussion of Rice, the Court of Appeals interpreted their holding in Rice as follows:
"We upheld the sentence, concluding that under a misdemeanor statutory scheme that did not require the imposition of any sentence when compared with a statutory scheme that mandated the imposition of a sentence of probation for a felony, no proportionality problem occurred under section 16. Rice, 114 Ore. App. at 107."
State v. Koch, 169 Or App 223, 230 (2000)
Rice, furthermore, was a 5-4 en banc decision. The dissent, by then-Judge De Muniz, and joined by then-Judge Durham (both of whom are now on the Oregon Supreme Court), was strongly worded:
"The majority recognizes that the legislature's power to classify criminal conduct in different ways and to designate different penalties is circumscribed by the constitutional requirement of proportionality. It then ignores that constitutional mandate by deciding that, because a court can decide not to impose incarceration for a misdemeanor, there is no proportionality problem. A court's discretion to impose a sentence within a statutory range does not alter the fact that the ranges here provide for greater penalties for lesser offenses. That result is contrary to the constitution."
Rice at 108.
It would seem like there are two justices at least who would want to address this issue if given the opportunity. Given the likelihood that the issue would moot out in a normal appeal, you would want to pursue either a petition for a writ of mandamus or a writ of habeas corpus. Fortune favors the bold. If your client is given a year on a misdemeanor, you should certainly consider either path, even if outside your comfort zone.
It is also worth noting that Rice pre-dates Blakely and therefore should be treated with skepticism for the reasons that Rankin mentions in his essay.
