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Can a Charge of Aggravated ID Theft Violate a Victim's Rights?

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This wikilog article is a draft, it was not published yet.

by: Ryan • June 23, 2011 • no comments

Not every charge of Aggravated ID Theft will violate a victim's constitutional rights, but some might.

Aggravated Identity Theft is defined as follows:

165.803 Aggravated identity theft.(1) A person commits the crime of aggravated identity theft if: (a) The person violates ORS 165.800 in 10 or more separate incidents within a 180-day period; (b) The person violates ORS 165.800 and the person has a previous conviction for aggravated identity theft; (c) The person violates ORS 165.800 and the losses incurred in a single or aggregate transaction are $10,000 or more within a 180-day period; or (d) The person violates ORS 165.800 and has in the person's custody, possession or control 10 or more pieces of personal identification from 10 or more different persons.

The state's position is that the person whose identity is stolen - and "person" in this context is defined as someone who is real, dead or imaginary - is the victim of ID Theft. Defendants will often argue - because the identity of the victim will often impact sentencing - that the person or business who would be defrauded is the victim. The defendant's argument at least has the virtue of limiting "victims" to business or people who are actually capable of being injured. Sometimes that will be the person whose identity was stolen - if they would have been defrauded - but more often it would not be.

The ID Theft statute itself is silent on who the victim is.

But note that Aggravated ID Theft can be charged when: "The [defendant] violates [the ID Theft statute] and has in the person's custody, possession or control 10 or more pieces of personal identification from 10 or more different persons."

If the person (again, real, dead or imaginary) whose identity is stolen is the victim, then the Agg ID Theft statute allows the aggregation of crimes against multiple victims into a single - but more serious - count.

Moreover, let's assume the defendant has a bad criminal history. Say he is subject to the repeat property offender law. If convicted of ten counts of ID Theft, each one naming a different victim, he could get 13 months for each count, or 130 months total. But if convicted of Aggravated ID Theft, he could only get a sentence of 19 months

That is arguably disproportionate, something I talk about here. But it may also mean Agg ID Theft can be unconstitutional itself.

Under the Oregon Constitution, victims have many rights, including the following:

Section 44. Term of imprisonment imposed by court to be fully served; exceptions.(1) (b) No law shall limit a court's authority to sentence a criminal defendant consecutively for crimes against different victims.

In fact, doesn't this make the aggregation of ID Thefts against different victims into a larger count of Aggravated ID Theft, which carries with it less time than the individual ID Thefts counts, unconstitutional because it makes consecutive sentences for crimes involving different victims legally impossible, in violation of Section 44 above? One conviction can't be consecutive to itself, anymore than one hand can clap.

The question is misleading, because it assumes the prosecutor is correct about who is the victim. This problem won't arise - at least not in the situation where the defendant has in his or her possession the IDs of ten different people - if those people (real, imaginary or dead) aren't the victims of ID Theft. If instead the victim is the person who will be defrauded, then this problem - at least under the hypothetical I've put forth - no longer exists. On the other hand, it might exist in other situations.

And one of those other situations would be thefts against multiple victims that are aggregated into larger thefts.

Aggregation is permitted as follows:

164.115 Value of property.For the purposes of chapter 743, Oregon Laws 1971, the value of property shall be ascertained as follows: (5) The value of single theft transactions may be added together if the thefts were committed: (a) Against multiple victims by similar means within a 30-day period; or (b) Against the same victim, or two or more persons who are joint owners, within a 180-day period.

In other words, if the defendant steals $500 from two people within a 30-day period, and the state charges a single count of Theft in the First Degree, the defendant may be looking at less time than two counts of Theft in the Second Degree run consecutively. And certainly one count of Theft I - despite two victims - can't be run consecutively against itself.

Explain to me why 5(a) above isn't - on its face - in violation of section 44 of the Oregon Constitution, which guarantees different victims the right to consecutive sentences? If individual counts of thefts against different victims are aggregated into a single, larger count - which would frequently, if not inevitably, carry less prison or jail time than the individual counts would collectively allow - how does that not violate at least the spirit - if not the plain language - of section 44?

So should defendants be moving to dismiss the aggregated/aggravated charges for a violation of the victims' rights?