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by: Ryan Scott • March 24, 2019 • no comments

All felonies in Oregon state court -- even Measure 11 felonies -- can be slotted into a gridblock on the sentencing guidelines. These guidelines -- often known as the grid -- inform both judges and lawyers of the presumptive sentence of that particular crime, calculated in combination with the defendant's criminal history. Those presumptive sentences are often trumped by Measure 11 or sentences specific to repeat property offenders or repeat sex offenders.

The prosecution has ways of increasing the presumptive sentence, by giving notice of upward departure factors. In fact, the presumptive can be doubled, so that it is often greater than most Measure 11 sentences. These factors -- although they are considered elements of an aggravated version of the crime under the US Constitution -- are rarely submitted to a Grand Jury for approval, nor are they presented to a magistrate pursuant to a preliminary hearing. All it takes is written notice within 60 days of arraignment on a felony indictment.

The easier it is to do something, the more frequently it is done, and so prosecutors will often file notice of very frivolous factors in an effort to gain additional leverage over a defendant. Given there is no real oversight, there is no disincentive for prosecutors to do this. How frivolous? Upward departure factors must alleged something that isn't captured in the crime itself, because the factor is supposed to show why the crime is uniquely deserving of extra punishment. Yet any defense attorney who has been practicing for more than a few years has seen a notice that alleges the enhancement of "use of a dangerous weapon" for a crime, such as robbery in the first degree, that as alleged requires use of a dangerous weapon. Or "threat of violence" in an assault case. I haven't yet seen "permanent injury" alleged when the defendant is charged with murder, but I've seen a departure notice that is just as ridiculous.

However, this practice may be unconstitutional, and we might be just a few years away from the United States Supreme Court expressly saying so. Here is a short summary of the complex history this issue implicates.

When the first ten amendments to the United States Constitution were passed, they imposed limits on the federal government in a number of ways, including limits on the prosecution of individuals and the sentences that could be imposed. These included limits on the search and seizure of a person’s property (Amendment IV), the right to a Grand Jury indictment for any felony charges (Amendment V), the right to counsel (Amendment VI), and prohibitions against cruel and unusual punishment (Amendment VIII). However, state court prosecutions were not subject to those restrictions, because the Bill of Rights did not apply to state government actions.

That changed after the civil war, with the passage of the 14th Amendment, and specifically the Due Process Clause, which was interpreted as applying at least some restrictions contained in the Bill of Rights to state court prosecutions. The question became, which constitutional guarantees applied in state court prosecutions and which did not?

In the late 19th Century, the United States Supreme Court started applying the particular guarantees on a case-by-case basis, rather than a wholesale application of the Bill of Rights to state action. In 1884, Hurtado v. California, 110 US 516, 4 S Ct 111, 28 L Ed 232 (1884) established that the indictment clause, part of the 5th Amendment of the United States Constitution, was not incorporated into state prosecutions, although the actual language of the opinion would suggest that a watered-down version applied, allowing preliminary hearings in lieu of Grand Jury indictments in state court prosecutions.

Justice Black championed the alternative theory that § 1 of the Fourteenth Amendment totally incorporated all of the Bill of Rights' provisions, see, e.g., Adamson v. California, 332 U.S. 46, 71-72, 67 S. Ct. 1672, 91 L. Ed. 1903 (Black, J., dissenting), but the Court never has embraced that theory. Pp. 761-763, 177 L. Ed. 2d, at 911.

The Court eventually moved in the direction advocated by Justice Black, by adopting a theory of selective incorporation by which the Due Process Clause incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainright, 372 U.S. 335, 341, 83 S. Ct. 792, 9 L. Ed. 2d 799. Increasingly, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or remedies did not apply to the States. See, e.g., Gideon, supra, which overruled Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595. Pp. 763-766, 177 L. Ed. 2d, at 912-914.

After a few decades of inaction, the United States Supreme Court again has shown an interest an interest in what is referred to as the “doctrine of incorporation.” In 2010, the Supreme Court announced that the 2nd Amendment put limits on state action. McDonald v. City of Chicago, 561 US 742, 743-744, 130 SCt 3020, 3022-3023, 177 LEd 2d 894 (2010). In a footnote in that opinion, Justice Alito noted that there were only four rights from the Bill of Rights that had not yet been incorporated via the 14th Amendment. The rights were:

(1) The Third Amendment’s protection against quartering of soldiers; (2) The Fifth Amendment’s grand jury indictment requirement; (3) The Seventh Amendment right to a jury trial in civil cases; and (4) The Eighth Amendment’s prohibition on excessive fines.

In the next footnote, Justice Alito also highlighted the sui generis opinion in Apodaca v. Oregon, 406 U. S. 404 (1972), in which a plurality held that the right to a unanimous verdict did not apply in state court prosecutions. He did not include this among the other four, presumably because Apodaca held that the Due Process did largely incorporate the 6th Amendment but not entirely, thereby applying a watered-down version to state prosecutions.

Then, in 2019, two events of significance occurred. First, the United States Supreme Court ruled for the first time that the Excessive Fines Clause of the 8th Amendment applied to state action. Timbs v Indiana, 586 U. S. ____ (2019). The list of unincorporated rights was now down to either three or four, depending on how one reads Apodaca. Shortly thereafter, the Court accepted cert on an issue of even greater significance to Oregon: whether the right to a unanimous verdict, as implicitly required under the 6th Amendment, has been incorporated in state prosecution. Ramos v. Louisiana.

Defendant’s motion argues that the Supreme Court has increasingly adopted Justice Black’s proposal that the Due Process Clause incorporates the Bill of Rights to state action in its entirety. It is only a matter of time before the Supreme Court expressly overrules Hurtado, like it has done, and is likely to do again next year, with other opinions that have previously limited incorporation.

In this case, application of the Grand Jury Clause to state court prosecutions would require either submitting the enhancement facts to the Grand Jury prior to trial or, alternatively, holding a preliminary hearing. For reasons I'll explain in a subsequent post, it is not unreasonable to conclude that Hurtado already requires preliminary hearings. Regardless, the Supreme Court is moving with increasing swiftness towards total incorporation, and when it does so, submitting these enhancement facts to the trier-of-fact without an indictment would be recognized as violating the United States Constitution.