Can the DA beat Savastano with a really vague policy?

The Clackamas County DA’s office had a policy on aggregation back in 2009.  I knew it existed, but it came as a surprise to the prosecutor who had charged the case. I don’t know if this is still their policy, but this is what the policy said

The aggregation of charges should reflect the nature of the crimes.  The aggregation of charges should allow for a sentence that is proportional to the defendant’s criminal conduct, the defendant’s character and other appropriate sentencing factors.

What follows below is from the memo I wrote asking for dismissal.  It was never argued.  The plea offer sufficiently improved that trial was unnecessary.  Both arguments would need to be tweaked, especially in light of the Pettengill decision, but they should give you some ideas in going forward.   (Arguably, the first argument might be doomed in light of Pettengill, but I’d want to think about that some more.)   Two things to keep in mind:  one, is the aggregation internally consistent?  If you can’t find aggregation cases in your county that show disparate treatment, can you show that the aggregation in your case wasn’t done consistently even within the one indictment?    Secondly, any policy will open the door to many more arguments we can make.  Embrace even a vague policy, just as you would a search warrant.  It’s easier to beat search warrants than warrantless searches, because once they’re locked in to something in writing, it’s much harder for them to dodge your attacks.

I.          The DA’s policy is insufficiently coherent to guide discretion

The policy that the DA’s office has put together to decide how and when to aggregate is so vague and incoherent that it provides no actual guidance whatsoever.  It states:

The aggregation of charges should reflect the nature of the crimes.  The aggregation of charges should allow for a sentence that is proportional to the defendant’s criminal conduct, the defendant’s character and other appropriate sentencing factors.

Taking that policy and applying it to the bare facts of this case, it is impossible to determine if the policy supports total aggregation, partial aggregation or no aggregation at all.  First and foremost, it states that “other appropriate sentencing factors” should be considered, but it does not state what those factors are.

Further, it states that aggregation “should allow for a sentence that is proportional to the defendant’s criminal conduct,” but it makes no determination on how to determine what is “proportionate,” especially since two or three misdemeanors can result in a sentence that is both longer in terms of probation and jail time than a felony theft or an aggravated felony theft.

In sum, it is impossible to know which factors should be considered.  The policy either leaves them unnamed or, alternatively, uses such broad generalities such as “nature of the crime” that it is unclear how they would impact the decision to aggregate even if they could be defined.  What the policy does not say, however, is that the goal is to maximize potential liability of every defendant, although if it did, that would at least be something concrete.  Rather, the policy purports to take into account character, proportionality of the sentence, and nature of the conduct, but does not say when such factors would ever result in the type of partial aggregation which maximizes potential liability that we have in this case.

If the policy itself gives no indication on how the policy impacts the decision to aggregate, then it is a policy that is impossible to apply consistently.  Consequently, the DA’s office has no policy that satisfies the Equal Privileges criteria, and therefore, the indictment violates Article I, section 20.

II.        If the policy is deemed sufficient coherent, then the DA’s office has not followed its own policy

As previously noted, even when a policy exists, the defendant, under Article I, section 20, can still challenge the application of the policy.

The standards expressed in ORS 135.415 are consistent standards representing a coherent, systematic policy. Defendant does not argue otherwise. His quarrel is with the application of such standards.

State v. Buchholz, 309 Or 442, 447 (1990)

It must be kept in mind that, by definition, the issue of aggregation only comes up where a defendant has committed multiple thefts.  Self-evidently, then, while the policy endorses the idea that the aggregation should take into account “the defendant’s character,” it must be remembered that every defendant in this situation is alleged to have committed theft.  Something more must be intended.  Presumably, the indicia of “defendant’s character” should include his or her criminal history, and in this case, the defendant has no criminal history.  That factor, therefore, would mitigate against any aggregation.  In addition, he took full responsibility when confronted with these crimes when interviewed by the police.  That too would say something about the “defendant’s character” which should argue against aggregation.

In contrast, the state has aggregated the incidents in order to maximize potential liability, when this defendant’s forthrightness and lack of criminal history – presumably factors the state intends when it talks about his character – would compel something less.

Furthermore, the aggregation “should reflect the nature of the crimes.”  Implicitly, this would allow the DA’s office to consider the breadth and scope of the theft, in particular, the length of time during which the thefts were committed.  But here, the aggregation slices the onion very, very thinly:  it aggregates those thefts that occurred between November 1 and November 15, but it does not include a theft which occurred allegedly on October 30.   Moreover, if it is appropriate to aggregate all the thefts that occurred in November, then it would be just as appropriate to aggregate all the thefts that occurred in October, yet the state separates them out into one felony (count 1) and one misdemeanor (count 3).

If the “nature of the crime” and the requirement of “proportionality” is intended to factor in the amount of money stolen, it is worth noting that Aggravated Theft would require substantially more money taken, and yet it would limit the amount of jail – for a first offender – to 90 days.  Here, by maximizing the potential liability of this defendant, the jail time is potentially much greater.

If the DA’s office policy is being applied in this case, the question then becomes:  what in that policy justifies two felonies and a misdemeanor, rather than simply two felonies?  Or one felony and four misdemeanors?  The nature of the crime – defined by breadth and scope – is relatively minor compared to other crimes of this nature.

If we assume the DA’s policy provides consistent criteria that can be ascertained and applied, a different result is required than contained in this indictment.  The factors that this DA’s office itself identifies — factors that are intended to provide the state guidance on what to aggregate and when — would compel a result other than simply determining the greatest damage that can be done to this defendant