If they meant possession, why didn't they use the word possession?
by: Ryan • December 14, 2013 • no comments
If you think of criminal statutes in terms of contracts, then the legislature should be disbarred for their frequent inability -- as the sole drafters of the contract -- to write sufficiently clearly so as to avoid perpetual litigation of the terms of the contract.
Add to that the judicial presumption that -- faced with any ambiguity -- the legislature must have intended the broadest possible interpretation with the most severe punishment, and the result is lots of defendants serving time for things the legislature may never have intended to be criminal (or criminalized by a particular statute). The obvious example is St v. Ofodrinwa. As I understand the Supreme Court's reasoning, the legislature originally intended that sex abuse II only apply to situations where there was an actual lack of consent. But in a subsequent session, the legislature included the statute in a list of statutes that involved age-based consent issues, and so obviously the legislature intended to broaden the sex abuse II statute to include age-based lack of consent. You may ask, if the legislature wanted to change the law, why didn't they actually amend the statute they wanted to change? And why isn't there any any record of the legislature expressing the explicit intent to change the statute? Or if the legislature suddenly wanted to make consent with a 17 year old a felony, why not just make contributing to the delinquency of a minor a felony? (A prosecutor who wanted it to be a misdemeanor could still treat it as one.) I don't know, and the Ofodrinwa court didn't feel the need to address any such questions.
But Ofodrinwa isn't actually what I wanted to talk about today. Another case of sloppy drafting -- particularly sloppy if you assume the legislature meant the broadest possible meaning of its terms -- involves the crime of endangering the welfare of a minor, based on "maintaining or conducting" drug activity in the presence of a minor. The crime is frequently charged when the defendant merely possesses controlled substances. If the legislature wanted to criminalize the presence of minors in a building where controlled substances are possessed, then why wouldn't they just say that? Why use the substantially more ambiguous language of "maintained and conducted"?
The defense lost on that issue this year at the Court of Appeals, and I must confess the COA reasoning was pretty compelling. I hadn't read the briefs. Nevertheless, I wasn't as certain of my opinion after reading the opinion as I was before. And I'd largely forgotten about the issue, thinking the issue was now decided.
Not so much, it turns out. The OSC just granted review. The question presented is:
- Does the phrase "unlawful activity involving controlled substances," as used in ORS 163.575(1)(b), a subsection of the statute defining the crime of endangering the welfare of a minor, include the unlawful possession of controlled substances?
