There is another way I think we should be using the proportionality clause to attack sentences. It is when the exact same behavior can produce wildly different sentences depending on the charging creativity of the prosecutor.
Does it make sense to impose a sentence that the defendant only serves after he has been rehabilitated? The following is taken from a memorandum of law set to be heard at the end of August, 2023.
Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense.
Here's my question. The identical crime can be treated by statute as either a misdemeanor or a felony. There is no legal distinction whether it is one or the other. Can both misdemeanor and felony punishment be proportionate to the exact same behavior?
Every Attempted DCS felony has a crime seriousness level (CSL) 2. It does not matter if the defendant is charged with substantial quantities of commercial drug offense factors.
Yesterday, in a case called Timbs v. Indiana, the United States Supreme Court heard oral argument on whether the Excessive Fines Clause of the 8th Amendment applied to the states.
When the Bill of Rights -- the first 10 amendments to the US Constitution -- was first adopted, it did not apply to the states. However, the passage of the Due Process Clause of the 14th Amendment -- which does apply in state court -- was widely interpreted as incorporating some of the first 10 amendments, that is, limiting state power in state criminal prosecutions, primarily. But which federal constitutional rights protect a defendant in state court and which do not? Early on, it was hit or miss, and in 1884, in a case called Hurtado v. California, the US Supreme Court appeared to hold that the indictment clause in the Fifth Amendment does not apply to state prosecutions. More on this later.
Over time, the Supreme Court increasingly held that the Due Process Clause of the 14th Amendmendment incorporated more and more of the Bill of Rights. And the trend has been to reverse earlier opinions that said otherwise. For example, it wasn't until 2010 that the US Supreme Court held that the 2nd Amendment (the right to bear arms) was incorporated by the Due Process Clause, reversing very old precedent. Thus, in state court, a defendant could cite the federal protections of the 2nd Amendment when challenging a state statute.
In the Timbs case, the question at issue was whether the Due Process Clause incorporated the provision in the 8th Amendment that prohibits "Excessive Fines." Here's what SCOTUSblog had to say about how the argument went:
- Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.”
Why does this matter in Oregon? It matters for two reasons. Two provisions from the Bill of Rights that have arguably not yet been incorporated are the right to a unanimous jury (which is not expressly found in the Bill of Rights) and, as mentioned above, the right to a Grand Jury indictment.
I'm not going to talk about the first. This post is about whether the Grand Jury Clause applies to Oregon. But before we get to that, your first question should be, "who cares?"
That should be your first question because Oregon's Constitution has its own Grand Jury clause, Article I, section V. It states that felony prosecutions require an indictment by Grand Jury, a waiver of indictment or a preliminary hearing. If the Oregon Constitution guarantees at least a preliminary hearing, why does it matter that the federal constitution does not?
But the reason it matters is this: the US Constitution recognizes as elements of crimes -- often referred to as Blakely elements -- that the state constitution does not. These elements enhance or aggravate a crime, and they can significantly lengthen the defendant's period of incarceration. Because they are not recognized as elements of a greater offense under the Oregon Constitution (with some exceptions), they do not need to be submitted to a Grand Jury under the Oregon Conbstitution. In other words, the prosecutor can threaten to double the defendant's potential sentence by dashing off -- without any oversight by a Grand Jury or a magistrate -- a number of often ill-thought-out enhancement factors up to 60 days obtaining the indictment.
But because these are elements of aggravated offenses under the US Constitution, if the Grand Jury clause was incorporated as part of the 14th Amendment, and therefore applicable to the state's, the current statutory notice scheme for enhancement factors would be unconstitutional. It would require some form of oversight, and as a result, we would see far fewer enhancements and thus shorter prison sentences.
Put another way, if Hurtado v. California were overturned, then a large number of defendants would benefit. For one, it would decrease the prosecutor's leverage pre-trial. More than anything else -- even more than unanimous juries -- it would have a significant impact on the number of people in prison by generally reducing the length of prison sentences.
(Yes, the prosecutor could still get upward departure factors past the GJ or past a magistrate, but as with anything else, the harder you make it for someone to get a widget, the fewer widgets they will get.)
Since Justice Gorsuch appears to believe that partial incorporation doesn't pass the laugh test, maybe we should be thinking about challenging the use of enhancement facts that haven't been submitted to the Grand Jury and give him the opportunity to apply the last part of the 5th Amendment to Oregon criminal prosecutions.
But I mentioned above that Hurtado "appeared" to hold that the GJ Clause doesn't apply to state prosecutions. Why the hedge?
While it's true that Hurtado found that it does not violate Due Process when the state doesn't submit a charge to the Grand Jury, it does appear to say that Due Process would still require a preliminary hearing. The Hurtado court wrote, after a discussion of the importance and history of Grand Jury indictments:
- Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.
In other words, a preliminary hearing in state court prosecution satisfies Due Process. If this is correct, enhancement factors that aren't subject to preliminary hearings, even if Hurtado isn't overturned, violate the US Constitution.
This concept -- that maybe the right applies but not the full scope of that right -- was endorsed -- at least generally -- by Justice Kagan at the same oral argument mentioned above. Again, SCOTUSblog:
- At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.
That sounds like exactly what Hurtado did. Maybe you don't get an indictment in state court but the protection that an indictment is supposed to provide is satisfied by a preliminary hearing.
It is not unusual, in a promoting prostitution case, that the defendant is in jail when the crimes allegedly occurred. Tape recorded jail calls will reveal that the defendant sought to have money placed on his books by a woman whose phone number is often used in backpage ads, which offer her services as an escort, though nothing expressly illegal is described in the ad itself. The money that is subsequently placed on defendant's books at the jail is, under the theory used to obtain an indictment, "pursuant to an agreement or understanding that the money, goods, property, services or something else of value is derived from a prostitution activity."
In these cases, the alleged prostitute never testifies, and it is up to a police officer to testify as an expert that those backpage advertisements are consistent with "prostitution activity." This falls under the category of "profile evidence," because there is no direct evidence of this particular person exchanging sex for money, but rather, that she does things -- such as placing lawful backpage advertiesements -- that other people -- who did exchange sex for money -- also did.
Is that enough to prove that the money placed on the books was derived from prostitution activity?
It shouldn't be, and there are a number of ways to attack it. One way would be to move for a limitation on the jury's consideration of the officer's profile evidence testimony. Specifically, the jury should be prohibited from using the profile evidence as substantive evidence that she in fact prostituted herself.
Case law in Oregon is thin or non-existent when it comes to the uses for which profile evidence can be put. Other jurisdictions have more developed case law in these areas. In 'AZ v. Escalante, (issued Sept 14, 2018), the Arizona Supreme Court -- under their version of the plain error standard -- reversed convictions based on the use of profile evidence as substantive proof of guilt, which is impermissible because "of the 'risk that a defendant will be convicted not for what he did but for what others are doing.' [Lee, 91 Ariz at 54.]"
The AZ court wrote:
- The prosecutor here introduced drug-courier profile evidence. He elicited testimony from officers who, after relating their training and experience in drug interdiction, described typical behaviors of drug-traffickers, thereby suggesting that because Escalante also engaged in such behaviors, he too was a drug-trafficker.
The court noted that such evidence can have value, but not as substantive evidence of guilt. If you're representing someone whose is charged with promoting or compelling prostitution because profile evidence is the only evidence the non-testifying witness engaged in acts of prostitution, use AZ v Escalante and the cases it cites to limit the jury's consideration of that evidence as substantive proof of prostitution activities. Then, move for a motion for judgment of acquittal at the close of the state's case. If you won the former, you'll likely win the latter.
An article on this topic here.
Orin Kerr's same-day take on the status of the third-party doctrine can be found here (question #9)
- It lives, but there is an equilibrium-adjustment cap on it. The old understanding was that the third-party doctrine is a bright-line rule: When you voluntarily disclose information to someone, whether to an undercover officer or a business you're working with, you don't have Fourth Amendment rights in the recipient's copy of that information. Chief Justice Roberts says that the third-party doctrine is more limited than that.
- As I read him, the Chief seems to be saying that there is an equilibrium-adjustment limit on the third-party doctrine. Once the third-party doctrine starts to give the government massive new powers, the third-party doctrine may no longer apply. Here's the key passage:
- "There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information."
As many of you may know, I've written about the limitations on the third-party doctrine under the Oregon Constitution ever since St v Ghim came out. OCDLA had a presentation on Ghim at the Winter Conference 2017, which is looking rather prescient right now.
There is a lot for defense attorneys to work with now, under both Constitutions.
Fourthamendment.com has the details.
Whenever you receive an upward departure notice, you should review the relevant OARs, which can be found here.
This is because the OARs may provide a defense that isn't obvious from the notice. For example, the OAR on vulnerable victim is quite explicit that the defendant must have known of the specific vulnerability. Further, it's not enough that the person is "vulnerable" but that the vulnerability "increased the harm or threat of harm." That will not be true in all cases. I also like the use of the word "extreme." In the context of age, I'm inclined to think that 14 isn't an extreme age. Nor is seventy.
- (B) The offender knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct.
Also of note is the limitation on the "multiple victims" enhancement.
- (G) The offense involved multiple victims or incidents. This factor may not be cited when it is captured in a consecutive sentence.
In certain cases, that second sentence is key.
Here are two important challenges to upward departure factors. They're basic, but often forgotten by even experienced defense attorneys.
If you do felony sentencings, then you know that there is a three-step process in order for the defendant's sentence to be upwardly departed. First is notice that the state intends to prove one or more aggravating factors to the trier-of-fact. The second is actually proving that factor beyond a reasonable doubt to the trier-of-fact. And the third is the judge finding "the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines."
I have previously written why I believe why "on supervision" never justifies an upward departure. The reason is simple: a defendant's status of "on supervision" is not remarkable. In fact, it's probably more likely than not. If so, it isn't the type of "exceptional" circumstance that the judge must find in order to upward depart.
There is a new case that probably justifies making this argument with a bit more vigor. In State v. Davilla,,the Court of Appeals reversed an upward departure on an aggravated murder conviction. It did so because the reasons given for the upward departure were insufficient.
- To be clear, we are not holding that a defendant’s use of a dangerous weapon could not, as a matter of law, justify a departure sentence. Rather, we conclude that the court’s explanation here regarding defendant’s choice of a small, dull knife and the “increased pain and suffering” experienced by the victim as a result is insufficient to demonstrate why defendant’s use of a dangerous weapon in this case created circumstances so exceptional that the imposition of a presumptive sentence would not accomplish the purposes of the guidelines.
If the state has proven "on supervision", and the judge is now deciding whether to seek an upward departure, be sure to point out that "on supervision" is not exceptional, as demonstrated by the post I linked to above, but also insist that the judge put on the record the reason why "on supervision" is so remarkable in this case that it demonstrates why the guidelines sentence is not sufficient. The judge will have a much easier time explaining why a presumptive probation is insufficient, but she will likely stumble over explaining why a presumptive prison sentence, particularly a long prison sentence, is not sufficient. The key is to ask -- and ask again if necessary -- that the judge put on her reasoning. In the absence of such a request by the defendant, the Court of Appeals will be less likely to hear a complaint that the judge's lack of explanation is insufficient.
The potential significance is this: we can assume the state will attempt to elide the improper joinder demurrer by alleging language justifying joinder in the indictment. If they do so haphazardly for counts that should not be joined, but put in enough language to defeat the demurrer pre-trial, the Sanchez case suggests two remedies when it's apparent -- once the state has rested -- that the counts should not have been properly joined.
If there is one blog post I've written that I think is the most valuable, it's this one. It not only discusses some interesting issues about confessions in the context of a shaken baby case, it also was amended to include links that address some issues related to the disputed science that is relied upon by the state to charge shaken baby cases. Here's one more, from the March 20,2015, edition of the Washington Post, "Prosecutors build murder cases on disputed Shaken Baby Syndrome diagnosis."
I am quite confident that there are prosecutors who, based on the flawed science, have sent innocent people to prison. Alas, I don't think we'll ever see a letter like this one. In fact, I think even suggesting to a prosecutor that at some point in their life, they'll likely have reason to write a letter like this, would earn nothing but their anger.
In US v. Chovan, a defendant with a record of DV misdemeanors, challenged both facially and as-applied, a charge of Felon in Possession of a Firearm. The 9th Circuit affirmed his conviction. But it's worth a read -- especially the concurrence -- if you've got a state-level charge against a defendant with an old, minimal and/or non-violent criminal history.
This is a promised follow-up to this post , which suggests a due process challenge to Sex Abuse II when the "victim" is 17 years old. The quote below isn't intended to be a definitive answer to the standing issue, but I just want to encourage defense lawyers to see standing as -- at worst -- a surmountable obstacle.
In a 9th Circuit case involving the constitutional right, under the Lawrence analysis, of a mentally ill woman to have intercourse, the dissent noted the following:
- If JH has, in certain circumstances, a constitutionally protected right to consent to sex and she does in fact consent, then there is no constitutionally legitimate basis, under Lawrence, to preclude Anderson from having sex with her in those circumstances. Anderson therefore need not satisfy the doctrinal requirements of jus tertii or third-party standing (although I believe that he could).
Anderson v. Morrow, 371 F.3d 1027, 1040 (9th Cir. Or. 2004)
The headline alone would have made Do 17 Year Olds Have a Constitutional Right to Intercourse Do 17 Year Olds Have a Constitutional Right to Intercourse , but not so much, actually.
At some point, I will follow this up with an argument that a criminal defendant would have standing to assert the 17 year old's constitutional right.
It would seem worth raising, for no other reason than alerting the trial judge just how out-of-step Oregon is when it makes a felony (sexual abuse in the second degree) out of sex with 17 year olds, and further it requires sex offender registration, when not only is it not a felony in most states, it's not even criminal.
The rule of lenity use to exist in Oregon, and it was a good rule. It limited the reach and scope of various criminal statutes when we couldn't really tell from reading the statute or looking at legislative history what the legislature intended. That is, if there was some ambiguity about legislative intent, the rule of lenity would favor a more narrow interpretation. In my mind, I compared it to the rule that ambiguous terms in a contract are found against the party which drafted the contract; since the legislature writes the law, they bear the ultimate responsibility for clarity and precision, which so often our statutes lack.
When the legislature got rid of the rule of lenity, the result was to inadvertently (or perhaps advertently) encourage broadly written statutes that are invariably interpreted in the way most favorable to the state.
I say the legislature got rid of the rule of lenity, because that's what the Oregon Supreme Court says it did.
The "rule" was abrogated by the legislature when it adopted ORS 161.025(2), which directs courts to construe penal statutes "according to the fair import of their terms." See Bailey v. Lampert, 342 Ore. 321, 327, 153 P3d 95 (2007) (so holding).
The rule of lenity still exists in federal court, because there is a federal statute that supports the rule. Every now and then, I'll read a brief or a federal opinion that hints that the rule of lenity is rooted in the due process clause, but SCOTUS has never said so, because -- in light of the federal statute -- they've never had to.
Looks like that's going to change. Today, SCOTUS granted cert in ten cases, and here's the last of the ten:
Henderson v. United States 11-9307 The petition raises two questions: "(1) Whether a prior state disposition resulting in a one-year suspended sentence, which is not appealable or considered a 'conviction' under state law, is a 'prior conviction' that has 'become final' for purposes of the penalty enhancement provision of 21 U.S.C. § 851; and (2) whether the Due Process Clause requires the court to apply the rule of lenity in choosing between conflicting precedents with regard to the interpretation of a sentencing statute when the issue has never been decided by the en banc court of appeals and neither decision has been overruled."
Okay, the issue isn't exactly on point: the ideal question for SCOTUS would be, "did the state supreme court (any state supreme court) err in failing to apply the constitutionally-rooted rule of lenity?" But I'll take this one.
When SCOTUSblog puts up a page on Henderson, I'll post a link. For the time being, if you've got an ambiguous statute (and as I've said repeatedly, ambiguity favors the state), I urge you to argue that due process obligates the court to interpret the statute narrowly.