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Why Can Misdemeanor Sentences be Worse than Felony Sentences? January 18, 2011

Posted by FairSentencing in : Current News , trackback

Why doesn’t a one-year sentence for a misdemeanor violate Oregon’s proportionality clause, Or Const, Art I, sec 16? The general rule is that a sentence for a lesser crime is disproportionate if longer than the worst possible sentence for some greater crime. See e.g., Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955). Felonies of crime-seriousness (“CS”) 1 and no departure factors cannot lead to a worse sentence than 30 days in jail and 18 months of probation. Class A misdemeanors can lead to sentences of a year in jail, or six months in jail and five years of probation, both of which are worse.

There are two possible defenses of the one-year misdemeanor sentence. First, the petty felony could be the subject of an upward departure, in which case the worst possible sentence is worse than the worst possible misdemeanor sentence. Second, Oregon’s sentencing scheme might constitute a decision by the legislature that some misdemeanors are actually worse than some felonies.

The second argument, that misdemeanors are actually the worse offenses, is easier to refute. In State v. Ferman-Velasco, 157 Or App 415, 971 P2d 897 (1998), the court rejected an argument that a 75-month Measure 11 mandatory minimum for a Class B felony was disproportionate because it was longer than the sentences for some Class A felonies. The court held that Measure 11 had superseded the Class B/Class A distinction. In other words, Measure 11 provides that the crimes with Measure 11 minima are actually worse than crimes carrying shorter sentences regardless of whether those crimes are Class B or Class A.

That doesn’t apply in the case of misdemeanors and felonies. Misdemeanor sentences can be worse than felony sentences only because 1) felonies, but not misdemeanors, have a lengthy set of rules governing sentencing, and 2) the US Supremes threw a big wrench into Oregon’s (and everyone else’s) felony sentencing schemes when they decided Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000) and its progeny, adding jury trial rights to the sentencing rules. There is no Oregon law providing that misdemeanors are more serious than felonies, as there is a law (Measure 11) providing that Sexual Abuse I, a Class B felony, is actually worse than Burglary in the First degree, a Class A felony.

The remaining argument, that every felony carries at least a possibility of a worse sentence than the maximum for any misdemeanor, is more persuasive, but it is still wrong. Although any felony can, by departure, carry a longer sentence, the felony-plus-departure is a different, more serious crime. That doesn’t count.

Crimes are defined by elements. A crime with elements A, B, and C is a different, lesser crime than a crime with elements A, B, C, and D. The crime of Possession of a Controlled Substance has the elements of 1) possession of 2) a controlled substance. It carries a maximum penalty of 30 days in jail and 18 months of probation. By contrast, the crime of Aggravated Possession of a Controlled Substance has one or two additional facts. Any number of facts would qualify; some are listed in the Oregon Sentencing Guidelines, but some aggravating factors are not listed. Without two additional facts, for both a dispositional (probation to prison) and durational (six to twelve months in prison) departures, the CS 1 felony cannot carry a year of incarceration.

Suppose that the client got a year in jail for a Theft in the Second Degree, a Class A misdemeanor. You argue that he could not have gotten that long for Theft in the First Degree, a Class C felony. The state responds that he could have gotten that long for the Class A felony if he stole a million dollars, in which case the offense would be ranked at Crime Category 6 and the court could depart for harm greater than typical.

On the other hand, if a person committed Theft I of 800 dollars, the sentence could still be a year, if the court found multiple departure facts. Facts relating to the offense are pretty clearly elements (and thus would define the a new, greater crime), but facts relating to the offender are not elements under Oregon law. And the federal definition of elements might not help in trying to rely on the proportionality guarantee of the Oregon constitution.

So, in considering the greater offense in a proportionality argument, is it the least serious form of the offense (Theft I can be as low as CS 2) or the most serious form of the offense? Put that way, it should be the least serious form of the offense. The sentence for the lesser offense is disproportionate if _any_ more serious crime has a lesser sentence. And Theft I of less than $1,000, carries a much shorter sentence than the one-year maximum for a Class A misdemeanor. Theft I of a million dollars is a different crime than Theft I of $999.99; it has different elements and carries a different penalty. But the two crimes clearly have some similarity. As Ryan Scott pointed out a few months ago, Oregon cases are not very clear on what facts are elements and what are something else, and there aren’t many cases on proportionality at all. But State v. Shumway, 291 Or 153, 164, 630 P2d 796 (1981) is close to this issue. Shumway found a murder sentence with a 25-year minimum disproportionate to an aggravated murder minimum of 15 or 20 years. And, in analyzing the issue, the court was looking at sentencing statutes of differing applicability to different defendants. In other words, the statutory maximum, for purposes of proportionality analysis, incorporates sentencing provisions that do not apply in all cases.

So, does the possibility of a non-elemental departure fact (one about the defendant) change whether we use ordinary Theft I or aggravated Theft I for proportionality purposes? What if your defendant has no possible departure facts (unlikely if the court is contemplating giving a year sentence for a Class A misdemeanor, but who knows?) For proportionality purposes, do we look at the worst lawful sentence for this particular defendant, or for any defendant? The state certainly won’t allege or prove any aggravating factors in a misdemeanor prosecution. They’re only relevant to this unexpected sentencing argument in a misdemeanor sentencing,  and aggravating factors from the Oregon Sentencing Guidelines only apply to felonies. Justice Thomas Balmer of the Oregon Supreme Court has suggested that proportionality requires considering the offender’s personal characteristics. Some Thoughts on Proportionality, 87 Or Law Rev 783,  806-807 (citing cases for the proposition that some sentences, although proportionate for recidivists, might be disproportionate for first-time offenders). The most recent statement on this topic from the Oregon Supreme Court, State v. Rodriguez/Buck, 347 Ore 46, 217 P3d 659 (2009), expressly considered criminal history in determining proportionality.

So, under cases like Shumway and Rodriguez/Buck, both pure sentencing factors and defendant-specific factors are part of the proportionality analysis. And that makes sense, because the ultimate sentence, rather than just the guilt elements, establish the severity of the crime. The core of the argument is that unaggravated CS 1 felonies carry a month in jail and probation, but Class A misdemeanors can be a year in jail. That is obviously disproportionate, and it’s worth fighting about.

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