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If judges followed the law, no upward departures because of "on supervision"

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by: Ryan • October 28, 2012 • no comments

The Oregonian has a story today about the Commission on Public Safety.

According to the article, the commission has learned:

  • Oregon's prison population is growing even as the national trend is to cut prison intakes.
  • An increasing percentage of felons are sent to prison for nonviolent crimes.
  • And, surprisingly, nearly half of those entering prison last year fouled up while already on probation or parole.

That last one should be unsurprising to judges, prosecutors and defense lawyers. And while "nearly half" of everyone going to prison was on parole or probation, for certain crimes -- such as property crimes -I'm confident the numbers were significantly higher than that. (And lower, I suspect, for sex crimes.)

Yet despite the fact that it's commonplace that someone who is being sent to prison was already on probation or parole, prosecutors will frequently threaten to double the defendant's presumptive prison sentence because that person was on probation or parole. But the standard that the trial court is supposed to use before going along with such a recommendation is this:

ORS 138.222(3)(b) requires that the trial judge give reasons for upward departure that are substantial and compelling. State v. Wilson, 111 Or. App. 147, 826 P2d 1010 (1992) (“Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling.”)

The Wilson Court explained that it would review the trial court’s “explanation of why the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines.” [Emphasis added.]

If nearly 50% of the people going to prison were already on supervision at the time of the new offense, how is being “on supervision” an exceptional fact that merits an upward departure?

The answer is, of course, that it isn't exceptional, and therefore isn't a basis for an upward departure.

Note also that "on supervision" isn't even an enumerated upward departure factor. Rather, the legislature only listed it as a reason not to reduce a sentence from prison to probation (if the defendant falls into the "optional probation" category). Since non-enumerated factors can be used, this doesn't mean the factor couldn't be used in theory. But it does suggest the legislature didn't consider it a compelling factor for upward departing the defendant.