I'll keep this brief. I wanted to simply explain why today's Oregon Supreme Court opinions inspired my earlier, arguably intemperate response.
Both opinions represent a dismantling of small but important limitations on prosecutorial discretion. And without those limitations and others like them, we will see a greater abuse of power and greater injustice.
In Reinke, we have a situation where a defendant was charged with many serious crimes, including kidnapping. Kidnapping in the second degree, the primary crime for which he was convicted, carries a minimum sentence of 70 months in prison. To charge that offense, the prosecutor must get approval from the Grand Jury, a semi-independent body of non-prosecutors. But to threaten a greater sentence, many times greater, up to 360 months, the prosecutor does not have to get approval from anybody. While a jury must ultimately find the defendant to be a dangerous offender, given that most cases resolve by plea negotiation, the ability to threaten more than an extra twenty years in prison gives prosecutors great leverage over the defendant. You might be innocent, but when a thirty year sentence is threatened, suddenly even innocent, or partly innocent, people will strongly consider taking that 70 months in prison. And after today's opinion, there's no significant limitation on the prosecutor's ability to make that threat.
Furthermore, in my own experience, the threat is more likely to be made when the evidence is turning against the prosecutor or his case is weak. A prosecutor knows that a defendant may take a defense-friendly case to trial when the threat is 70 months but not when it's 30 years. With some prosecutors, the more likely they will lose, the more outrageous their threats in the hope of getting a plea and avoiding that loss. Today's opinion makes that easier.
Add to that the fact that the factors which constitute "dangerous offender" are quite vague, and it's always easier to threaten a defendant when the "sentence enhancement factors" are vague and imprecise.
The Court of Appeals opinion in Savastano didn't provide complete protection against arbitrary charging decisions, but it provided some. That's gone now, practically speaking. I know the new Savastano opinion suggests it's keeping a number of protections but those protections are pretty impotent after today.
What sentence should a defendant get? Or more precisely, what factors should we consider when deciding on that sentence?. The harm done, the criminal history of the defendant, the motive, the circumstances, legislative intent. You and I could probably agree on a few more. What shouldn't be a factor is how clever the prosecutor can be in combining and recombining thefts in order to obtain the maximum sentence. Today's opinion basically enshrines the prosecutor's right to charge as creatively as he or she can, in order to gain maximum leverage or the maximum sentence. Recall that the state was arguing for, and succeeded in obtaining, the right to base charging decisions on an ad hoc basis. I could describe a hundred scenarios where two identical people could commit identical crimes, stealing the identical amount of money from the same identical victim, and both committed half their crimes in March and half in April. But one creative prosecutor could send one of those otherwise identical defendants to prison for years, and the other gets probation, simply because of how they stacked up the thefts.
When it's creative charging, and not the harm caused by the crime or the nature of the defendant, that determines the sentence, you can't get much more arbitrary than that. We should aspire to justice that is not capricious, although luck will always be an element of any justice system. Today, it's more random and arbitrary than it was yesterday.
Justice isn't merely guilt and innocence. Justice is finding the right sentence for the crime. Pity the society that can only imagine injustice in a twenty year sentence for the theft of bread. An unchecked executive branch will almost always err on the side of maximizing the sentence it seeks to obtain, in response to a variety of incentives and for a variety or reasons, including just because it can. Today's opinions constitute, as I said above, a small but significant dismantling of the constitutional protections against unchecked prosecutorial zeal.