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Revisting and Simplifying the Merger of DCS-MCS and PCS

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by: Ryan • March 3, 2011 • no comments

Quick quiz. I'd like you to answer three questions. Just answering in your head is fine, but please take a moment to articulate an answer for each.

(1) Why is possession of cocaine illegal?
(2) Why is delivery of cocaine illegal?
(3) Why is manufacturing of cocaine - which includes dividing cocaine into different baggies - illegal?

No, this isn't an essay on the virtues (or lack thereof) of the war on drugs. I just want to make a pretty obvious point. PCS, DCS and MCS are all illegal for the same reason: taking illegal drugs is [bad]. I'm not asking whether DCS, MCS and PCS should be illegal. They are, most people think they should be, and the reason is that the consumption of illegal drugs is unhealthy/addictive/perception-altering, whatever you think the public's definition of "bad" is.

And the reason - taking drugs is bad - is the same for each. DCS and MCS may be worse than PCS, given the assumption that whatever is bad about consuming drugs is worse when more than just one person is doing the consuming. (Yet drinking alone is also bad. Contradiction?) But that's simply an issue of degree; the legislative concern these statutes seek to address (we need to reduce the number of people consuming drugs) is the same.

With this in mind, let's recall that two things are necessary to keep DCS, MCS and PCS from merging into a single conviction. One is not sufficient. You need both. The first is whether each has an element the other does not. Okay, I've discussed this at length here, and let's assume for the moment that all three crimes have an element the other does not.

But there's a second requirement to keep any two of them from merging, and that's the idea that they must come from "separate statutory provisions."

For a number of citations to cases that discuss "separate statutory provisions," see my compilation of merger cases, which can be found on the Ryan page. In the meantime, read closely this recent quote from the Oregon Court of Appeals:

In White, the court reaffirmed that, to determine whether a single act violates two or more statutory provisions, a court must determine whether the legislature intended to create a single crime or two or more crimes. 346 Or at 280. That inquiry does not depend-at least not entirely-on the structural form that a criminal statute takes, although the use of a single section is one indication that the legislature intended to define a single crime. Id. Neither does the inquiry turn entirely on whether two or more charges are based on one or more statutes that address separate and distinct legislative concerns. Id. at 283. That is so because, as the court observed in White, "every statutory section that 'requires proof of an element that the others do not,' ORS 161.067(1), necessarily involves a distinct legislative concern-otherwise there would be no need for the additional element." Id. The court therefore clarified in White, that, "[A court views] the statute as a whole, looking to the text, context, and, when appropriate, legislative history of the statute. That analysis includes consideration of whether the sections, although addressing different concerns, also may address, on a more general level, one unified legislative objective." Id. at 283-84.

State v. Cufaude, ___ Or App ___ (Dec 1, 2010)

Do MCS, DCS and PCS address the same legislative objective? What were your answers to the three questions above? Were they different?

I will concede that DCS and PCS are trickier. But MCS and DCS should certainly merge. "Manufacturing" includes suchs things as packaging (such as dividing one bag into 10 smaller bags), not just the actual making of a controlled substance, and it seems intended to discourage the exact same outcome as DCS.

Anyway, there is case law that says these crimes don't merge, but the case law pre-dates the quiet revolution in merger law we've had for the past five years. This is an argument worth making.