Main/Trick question

<summary hidden>Choose among the following answers:  yes, no or sometimes. </summary>

Does the 5th Amendment to the United States Constitution apply to Oregon prosecutions?

Choose among the following answers:  yes, no or sometimes. 

Which one is the Fifth Amendment?  It reads:

:No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Much of it you remember.  Double jeopardy?  Check. Self-incrimination?  Check.  

And then there's the indictment clause.  Does that apply to Oregon prosecutions?  

Not according to the Oregon Supreme Court.  And it's a big deal.  If it did apply to Oregon prosecutions, enhancement facts, aggravating factors, Blakely factors, whatever you would call them, would have to be in the indictment.  Although prosecutors have a choice to submit enhancement facts to the Grand Jury under the state statute, it's rare that an Oregon prosecutor would do so.  But if the indictment clause -- that is, if a big part of the 5th Amendment -- were to apply to state prosecutions  then failure to submit enhancement facts to the Grand Jury would prohibit the state from seeking an upward departure.     
 
You may recall that Blakely factors -- named after [http://scholar.google.com/scholar_case?q=blakely+v+washington&hl=en&as_sdt=2,38&case=16163203473167624369&scilh=0 ''Blakely v. Washington''] -- are elements of an enhanced crime under the federal constitution.  As such, they must be presented to juries, absent a waiver by the defendant or an admission.  Essentially, the Supreme Court of the United States got rid of the distinction between sentence enhancements and elements.  As with any legal principle that shakes up the status quo, the appellate courts have to say the same thing over and over again before people start to get it.  As Justice Sotomayor stated just last year, when the government insisted there was a difference between sentence enhancements and elements:

:     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. 

[http://scholar.google.com/scholar_case?q=southern+union+v+united+states&hl=en&as_sdt=2,38&case=18396782658432761091&scilh=0 ''Southern Union v United States''] (June 21, 2012) 

Okay, so why does the Oregon Supreme Court say that part of the 5th Amendment -- the indictment clause -- doesn't apply to state prosecutions?  They rely on a US Supreme Court case called [http://scholar.google.com/scholar_case?q=california+v+hurtado&hl=en&as_sdt=2,38&case=1776527263855738233&scilh=0 Hurtado v California] from 1884.  As the OSC reads the case, according to their decision in [http://scholar.google.com/scholar_case?q=state+v+sawatsky&hl=en&as_sdt=4,38&case=13491379537872799485&scilh=0 State v. Sawatzky], SCOTUS has decided that the indictment clause was not incorporated by the 14th Amendment into state prosecutions.  The principle that the Bill of Rights was applied to the states through the 14th Amendment is known as the incorporation doctrine. 

But, under ''Hurtado v CA'', per the ''Sawatzky'' court, that portion of the 5th Amendment wasn't incorporated.  Most of it was.  Just not the indictment clause.  

A very quick aside:  I think the  ''Sawatzky'' court misreads ''Hurtado v CA'', because I believe that the case stands for the idea that a Grand Jury indictment is not essential because a preliminary hearing would satisfy due process.  At least that's what I take from this quote: “[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.”  ''Hurtado'' at 538.

Again, I read that quote as saying a preliminary hearing would satisfy due process.  And I'm inclined to agree.  But right now, defendants in Oregon get neither a preliminary hearing or a Grand Jury indictment on enhancement facts.  

But let's assume the ''Sawatzky'' court got it right.  Per ''CA v. Hurtado'', a part of the 5th Amendment, a part of the Bill of Rights, doesn't apply to state prosecutions.  ''Hurtado'' has been the law for over a century.  Is there any reason to think it would be overruled?

Yes, actually. And all because of a recent case from SCOTUS, one you've probably heard of. [http://scholar.google.com/scholar_case?q=mcdonald+city+chicago&hl=en&as_sdt=3,38&case=5141154246897960488&scilh=0  ''McDonald v. Chicago''].  

In that case, SCOTUS was faced with the following question:  according to a case going as far back at 1876, the 2nd Amendment was never incorporated into state constitutions.  It wasn't until McDonald, in 2010, that SCOTUS reversed, holding that, in fact, the 2nd Amendment did apply to state prosecutions.

The ''McDonald'' court noted that is was increasingly rejecting selective incorporation:  "Finally, the Court abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Malloy, 378 U.S., at 10-11, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

In sum, there is an argument that as SCOTUS has gotten away from selective incorporation, then the indictment clause should apply to state prosecutions.

I won't pretend the issue is that simple.  It is more complicated than I've made it, and I don't know how SCOTUS will ultimately rule if ever presented with the issue.  But I wanted to give y'all both a reason and the logic behind preserving the issue. 

First, argue that ''CA v. Hurtado'' should be overruled, because new case law suggests that SCOTUS, just as they did in ''McDonald'', is prepared to fully incorporate the Bill of Rights in state prosecutions, and therefore -- absent the allegation being contained in the indictment -- the state should not be allowed to go forward on an upward departure trial.  Second, if the court is not prepared to find that ''Hurtado'' is bad law, then the court should at least order a preliminary hearing on all enhancement fact allegations, because even though ''Hurtado'' may not require a GJ indictment, the language quoted above seems to say that due process would still require a preliminary hearing.  

Dozens of upward departure trials go forward every year.  Surely we can preserve the issue a half-dozen times and maybe get one of those cases up to the United States Supreme Court.
{{wl-publish: 2013-02-09 14:26:34 -0800 | Ryan:Ryan Scott }}