Renewed Power of Equal Privileges: Initial Thoughts on Savastano/Pettengill
(1) Ms. Savastano’s attorney filed a motion to dismiss the indictment based on an equal privileges violation, and the Court of Appeals ultimately agreed that a dismissal should have occurred. Assuming the Oregon Supreme Court affirms, Ms. Savastano will get out of prison shortly, have no convictions for this embezzlement, no probation, no parole and no restitution (which would have totaled “hundreds of thousands of dollars,” according to the opinion). I mention this for one reason: overly aggressive prosecution can undermine — rather than enhance — victim’s rights and community safety.
(2) Ms. Savastano’s attorney worked for the Metropolitan Public Defender’s office in Hillsboro, Oregon. He was a public defender. The attorney who handled the appeal was also court-appointed. I’m not saying public defenders are better than private attorneys, only that one should hesitate before assuming the opposite. It’s the individual attorney who makes a difference, not the person or agency who writes his or her check.
(3) To prove an Equal Privileges violation, disparate treatment only needs to be demonstrated if there is a policy in place. If there is no policy, no such showing is required. But the state can and will put forward policies that are vague enough in the hope of accomplishing the same charging freedom that no policy permits. There will be different ways to attack this, but I would recommend that the defense attorneys in each county create a database that reflects how cases are aggregated in that particular county, in order to determine if application of a vague policy is done consistently.
(4) Today’s opinion can be expanded to many other situations than just aggregated theft cases. The most analogous would be ID Theft cases, which are sometimes aggregated into Aggravated ID Theft, sometimes not, and sometimes both, in order to maximize the sentence. And as I suggested in a post a couple of weeks ago, the same argument should be made regarding the state’s effort to seek a Dangerous Offender sentence. To prove the absence of a DO policy, you’ll need to subpoena someone from their office to testify to the existence or absence of a DO policy, just like Mike Shrunk testified in St v. Freeland.
(5) The post How to Beat Traffic Tickets in Oregon just got a lot more relevant, I think.
(6) Assuming your DA’s office now develops a policy that allows them to charge in less than six month increments, please review this previous blog post. Further, note this footnote from the Savastano opinion:
We emphasize that we do not decide that ORS 164.115(5) is facially unconstitutional; we hold only that it was unconstitutionally applied in this case. Nor do we reach the question of whether a policy based on month-by-month aggregation would necessarily violate Article I, section 20. Finally, we do not reach the question whether a policy based entirely on jury convenience would be “permissible” even if consistently applied.
Trackbacks
- Can a Year-Long Embezzlement Constitute One Criminal Episode? « Oregon Library of Defense
- Is Maximizing the Potential Sentence in All Cases a Permissible Policy Under Savastano? « Oregon Library of Defense
- Can We Apply the Savastano Analysis to Sentence Enhancement Factors? « Oregon Library of Defense
- How to Beat Traffic Tickets in Oregon: UPDATED JUNE 2011 « Oregon Library of Defense
- The Companion Argument to the Savastano EP Argument « Oregon Library of Defense
Ryan,
Do you think Savastano could be applied in a Man. 1º prosecution. The common, and I mean no disrespect, run of the mill DUII accident that results in the death of an innocent victim is usually charged in Lincoln County as a Man. 2º. On a good day, the defendant might even be charged with a Crim Neg. Hom.
But most often the cases are resolved as Man 2ºs. I don’t believe there is a written policy with the local DA’s office. I know the DDA who has the case is angry (4 year old deceased victim). The DDA was called to the scene and at some point actually held the unconscious child.
Maybe. They probably don’t need a policy, because the statutory differences between the two crimes would theoretically provide sufficient guidance. But if you can find worse facts in a different case charged as a Man 2 (i.e., disparate treatment), then yes, I think it’s got an EP problem. You might want to call the court administrator and get the names of all Manslaughter cases from the past 3-5 years. Then contact all the defense attorneys to find out if they’ll willing to give you the police reports.