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Criminal Episodes and Crime Sprees, part I

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by: Ryan • October 20, 2010 • no comments

You may not like paying income taxes every year, but as unpleasant as it is, I want you to imagine a way it could be much worse. First, instead of largely taking your word for it, as the IRS frequently does, assume they assigned a special agent to your case. And further, imagine that tax laws were written very vaguely, so it would be a judgment call how much you had to pay. The IRS agent, furthermore, said that if you didn't agree to the amount he calculated, then he would ask the judge to order you to pay twice as much as a penalty for not agreeing to his figure. As for your accountant, he's not just an accountant. He's a plumber, a Broadway actor and a pilot. And he tells you that, well, figuring out how much you should pay in taxes is very complicated, and it's not really his specialty.

Apply that to everyone who pays taxes. In this world, how many people do you think would overpay their taxes each year?

A comparable situation arises daily, throughout the state, in the calculation of how much prison time a defendant should get. While some sentences are easy to determine, others require an understanding of sometimes vague and contradictory rules. I am not arguing (here) that some sentences are too harsh for the conviction, or that innocent people are in prison, or that the sentences actually serve to undermine, rather than enhance, public safety. I'm saying there are people in prison because the lawyer, judge and prosecutor didn't know how to do the math correctly.

The reason I'm putting this discussion of (what will be) highly technical legal issues in a public forum is that people - voters, legislators, defendants and family members of defendants - should be aware that the increasing complexity in sentencing has adverse consequences. One of those consequences is that some criminal defendants are serving longer prison sentences than the law requires, because their attorneys, the prosecutors and the judges do not know the law well enough to recognize when an inmate is serving an illegal sentence.

Even if you believe in being hard on criminals, just as you support the idea of taxes, you likely recognize that prison sentences or taxes based on bad math is not justice. If a person is given 20 years in prison for a shoplifting where the maximum is 1 year, the person isn't innocent in the traditional sense because she did shoplift. But she is serving time that her crime doesn't require or even allow. For the last 19 years she's doing time for no reason at all except a mistake. At an enormous human cost to her and her family; an enormous financial cost to our resource strapped state and, perhaps, an even higher cost to the credibility of our criminal justice system.

The ratio may never be 20-to-1, as in the case of our unfortunate shoplifter, but I believe there are people in prison in Oregon who shouldn't be there, only because their attorneys did not sufficiently understand the rules surrounding sentencing. Moreover, I believe that this wrongful imprisonment is a frequent and common occurrence in Oregon.

I do not know of studies that can prove that assertion. I base it on my experience, and my relevant experience comes in a number of forms: as a frequent lecturer to newer and more experienced Oregon criminal defense attorneys, as someone who is frequently a resource for other attorneys with highly technical questions, and as someone who often takes over cases of other attorneys and often sees what those attorneys have or have not done on behalf of their clients.

The very narrow topic I want to discuss in these essays falls under the heading of "criminal episodes." When jail inmates talk about "crime sprees," they are talking about criminal episodes. There is a rumor that re-surfaces frequently in the jail that if a bunch of individual crimes are part of a larger "crime spree," the maximum sentence that inmate faces is less than it would be had those crimes not been part of a crime spree. There is a small amount of truth to this rumor, though it is less true than it used to be.

Instead of "crime spree," let's go back to the phrase "criminal episode," since that's the legal phrase used in the criminal code. A criminal episode consists of all the crimes that are cross-related. In its simplest definition, "cross-related" means that the prosecutor can't describe one crime without getting into most of the facts of another crime. For example, let's assume a defendant is charged with felony Driving While Suspended (DWS) and felony DUII. They both result from a traffic stop. It's true that the prosecutor could prove the felony DUII without mentioning all the facts of the DWS - for example, the prosecutor doesn't need to mention that the driver's license is suspended to prove the DUII - but you can't prove the felony DUII without mentioning that the officer saw (or had evidence of) the defendant driving, and that's the most important fact in the DWS. Thus, the two crimes are cross-related. Because they are cross-related, they constitute one criminal episode.

The fact that these two crimes are from one criminal episode - one very small crime spree - reduces the maximum sentence the defendant can face. There are rules called "shift-to-I" and "200%" and "400%" that effectively serve as a cap on the maximum sentence the defendant would face.

But a combined DUII/DWS is easy. Obviously that's one criminal episode. Those two crimes overlap heavily in both time and place. But there are more complicated situations where it's not so obvious. In fact, it's sufficiently confusing that there are defense attorneys who do not recognize when a number of crimes in an indictment constitute just one criminal episode. And because they do not recognize it's one only criminal episode, the lawyers don't apply the caps on a maximum sentence that I mentioned above: "shift-to-I" rule, the 200% rule or the 400% rule. Further, a finding of separate criminal episodes - the opposite, obviously, of one criminal episode - can serve to increase a defendant's sentence dramatically by (1) re-constituting his criminal history score or (2) making him subject - despite no prior criminal history - to a prison sentence under the repeat property offender law, neither of which would occur if there was only one criminal criminal episode.

In other words, a finding of one criminal episode or a finding of multiple criminal episodes can mean the difference between probation and prison. And again, I believe there are many people in prison now, because neither the prosecutor nor the defense attorney realized that the law is more favorable to defendants on this issue than is widely presumed.

This has been the first essay. It's been mostly soap-box, and relatively non-technical. In the next few essays, published intermittently, I'll write about some of the more complicated cases where lawyers are least likely to recognize that multiple crimes arise from one criminal episode. These cases will involve theft, identity theft, encouraging child sex abuse (aka child porn) and other crimes that don't often require prison but frequently result in prison sentences.

Read Part II of Criminal Episodes and Crime Sprees