Main/Is Maximizing the Potential Sentence in All Theft Cases a Permissible Policy Under Savastano?

Take two defendants: Jack and Jim. Neither of them knows the other. Both are charged in the same county. Both have embezzled from their employers. Both have stolen exactly $5,000 over the same 10 week period. They both have the same criminal history: none. They both embezzled as a result of an addiction to video poker, convincing themselves that they would win enough and restore the coffers. They both confessed immediately when caught. Neither has a defense that isn't equally available to the other. Their two employers are the same in all relevant ways. Neither Jack nor Jim is more sympathetic than the other.

In Oregon, similarly situated defendants are supposed to be treated similarly. In fact, this principle exists in the Oregon Constitution, under the Equal Privileges clause.

Does it violate the principle of equal privileges for the prosecutor to charge Jack so that he is faces prison if convicted of everything he is charged with but charge Jim so that, worse case scenario, he is only looking at probation?

No problem, according to a number of prosecutors. That's perfectly okay.

You might not be surprised to find that I disagree. Here's why they are charged differently, and here's why I think it's a mistake with constitutional dimensions.

I've painted a picture where both men seem to be in identical situations in every way that should matter in a criminal prosecution. The victims are equally harmed, the men are equally (un)sympathetic (depending on your point of view), the crimes occurred in the same county. But there is one difference I didn't mention.

Jack stole $500 each time he had a chance, and he did so every week for 10 weeks. Jim stole $3000 once, skipped a month, and then stole $500 each week thereafter for the next 4 weeks. Jack has been charged with Theft I x 5, which means he is presumptive probation for the first four counts but looking at prison on the fifth. Jim is facing Theft I x 3, and while he could get jail, even if convicted of everything, he's not looking at prison.

To understand why they are charged differently, you need to know that it takes a theft of over $1000 to make a felony Theft in the First Degree (or Theft I). Anything less (if it's a theft by taking) is a misdemeanor. The prosecutor has aggregated Jack's thefts in pairs ($500 x 2), the bare minimum to charge a felony. Five pairs equals five felony thefts. Under the repeat property offender law, Jack faces prison on his fifth conviction.

On the other hand, there is no point in aggregating Jim's first theft ($3000) with anything else, since it is already a felony. But the remaining thefts would be misdemeanors if left unaggregated, so the prosecutor aggregates the remaining thefts in pairs the same way he did Jack's. 2 pairs, 2 Theft Is, plus the first Theft I that didn't need to be aggregated. Despite stealing the same amount of money as Jack over the same amount of time, Jim only faces 3 felonies.

In [Blog:Main/Renewed_Power_of_Equal_Privileges:_Initial_Thoughts_on_Savastano-Pettengill |  ''St v. Savastano''], the embezzlement convictions of Ms. Savastano were reversed because the prosecution did not have a consistent, coherent, office-wide policy on aggregating thefts. But what if the DA's office sought to avoid the problem, and it did so by adopting the following policy: we will aggregate the thefts in such a way that the defendant, if convicted of everything, would face the maximum possible sentence under the law. And that's what we have done in charging Jack and Jim above: we've squeezed as much blood from each as the law allows.

You can certainly see the appeal of adopting such a policy from the prosecutor's perspective. It gives the state maximum leverage to coerce a plea from the defendant. But notice that Jack and Jim - aside from being identical in all material respects - are being treated quite differently by the prosecution, based on criteria that is completely irrelevant to determining the appropriate sentence.

But, the prosecutor says, I ''am'' treating them the same. I am maximizing the possible sentence for both. I can't help it if the law doesn't allow me to punish Jim as much as it does Jack. But my policy is consistent and it's easily applied. Isn't that what the ''Savastano'' court said I needed?

But the ''Savastano'' court emphasized that the criteria that the policy was based on had to be "permissible." Are the criteria permissible if they are utterly irrelevant to determining what sentence Jack and Jim deserve? Here's what I mean. What if Jack went to prison because he was left-handed and Jim got probation because he was right-handed? That would be an absurd basis on which to sentence someone. Why? Because right- or left-handed says nothing about what sentence either of them deserve. Can irrational criteria be considered "permissible criteria"?

Imagine the same judge was sentencing Jack and Jim, and he had total and complete discretion whether to send them to prison or not, and the judge said, "I find that Jim's crimes are far more onerous, because he stole $500 a week for 10 weeks. That deserves prison. But Jack, I'll let him have probation, because he stole $3000 once, and then $500 four more times." You'd think the judge was insane. That distinction isn't remotely rational. And it's not rational because - just like being left-handed or right-handed - it is meaningless criteria on which to choose prison over probation. You could just as easily say Jack should go to prison, because his first $3000 theft was more brazen. Once again, if the criteria are not rational, if the criteria tell us nothing about who deserves prison and who doesn't, how can they constitute "permissible criteria"?

Similarly, the ''Savastano'' court said the policy had to be "coherent." What does "coherent" mean in this situation? I would guess it doesn't mean "irrational."

A simple solution is to interpret the aggregation statute so that it only permits aggregation in 6 month increments. The DA's policy is limited to when it will aggregate all the thefts in a 6 month period or when not to. A prison sentence should not be based on creative charging, which would only invite abuse. Limiting the state to 6 month increments would avoid the problem described above. Which is all the more reason - when you are making a ''Savastano''-style argument against the DA's aggregation policy (or lack thereof) - you should also make the argument [[Blog:Main/The_Companion_Argument_to_the_Savastano_EP_Argument |  discussed here]].

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Ryan Scott is a [http://digital.superlawyers.com/superlawyers/oregon2011#pg37 2011 Superlawyer]. His firm is [http://www.scotthugginslaw.com/ Scott &amp; Huggins].
{{wl-publish: 2011-07-16 21:00:00 -0700 | Ryan:Ryan Scott }}