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State's Response to Upward Departure Challenge

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by: Ryan • May 7, 2013 • no comments

As many of you know, I have been encouraging defense attorneys to challenge sentence enhancement allegations which aren't contained in the indictment. This argument is new, and it's an issue of first impression in Oregon. Yesterday, I received a copy of the state's response to the argument, the first one I've seen. And it should be very encouraging to those of you who have thought about filing the motion.

The defense argument is this: if the allegations aren't in the indictment, then there needs to be a preliminary hearing under the federal due process clause, because either an indictment or a preliminary hearing is a fundamental aspect of due process. Both procedures have long and deep roots in American jurisprudence.

The state's response doesn't dispute that preliminary hearings -- in the absence of an indictment -- are guaranteed by the due process clause. The state's only reason in opposing the motion is that "sentence enhancements" are not elements, and therefore the rules are different. There is no similar due process guarantee for sentence enhancements.

The obvious rejoinder is that the due process argument is, self-evidently, made entirely under the US Constitution, and, under the US Constitution, there is no legal difference between elements of a crime and sentence enhancements. SCOTUS has said so repeatedly, and you can even get a hint of irritation from Justice Sotomayor in the majority opinion in Southern Union v US that prosecutors still keep trying to claim otherwise. She said, in response to essentially the same argument the state makes here:

This argument has two defects. First, it rests on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an “element” of the offense and one that is a “sentencing factor.” See, e.g., 530 U. S., at 478; Ring, 536 U. S., at 605. Second, we doubt the coherence of this distinction.

If you are a defense lawyer or investigator, and you want the motion holding that upward departure factors must be subject to a preliminary hearing, as well as a copy of the state's response, just e-mail me at ryan@ryanscottlaw.com.