The Oregonian/OregonLive | By Noelle Crombie
A controversial new law that reduces sentences for some property crimes is unconstitutional, a Washington County Circuit Court judge ruled Wednesday.
Judge Charles Bailey handed down the decision from the bench while presiding over a shoplifting case; he didn’t issue a written opinion.
While the ruling has limited legal implications, it fuels the clash over the law passed last year that, among other things, reduces prison sentences for identity theft and first-degree theft.
The battle over the law played out earlier this week in Clackamas County, where District Attorney John Foote has sued the state, arguing that the lower sentences are unconstitutional and undermine the will of Oregon voters.
Foote claims the law alters parts of Measure 57, the 2008 voter-approved initiative that cracked down on repeat property thieves and drug offenders. He has asked the court to declare the new law “invalid and unenforceable” or to at least strike down parts of the law that reduce property crime sentences.
Foote said the bill passed both chambers of the Legislature with simple majorities and as a result failed to comply with Article IV of the Oregon Constitution. That provision requires two-thirds votes of each house, or a supermajority, to pass a “bill that reduces a criminal sentence approved by the people” through the initiative process.
The ACLU of Oregon and the Partnership for Safety and Justice support the latest sentencing law and argued it didn’t require supermajorities because it revised a 2009 law passed by the Legislature, not Measure 57.
That 2009 law, House Bill 3508, temporarily reduced prison sentences for property crimes in response to the state’s budget crisis. The Measure 57 sentences for property crimes were phased in two years later.
In the Washington County theft case, Chief Deputy District Attorney Roger Hanlon said Judge Bailey asked the prosecution and the defense lawyer to file briefs on the legal issues related to House Bill 3078.
Hanlon said he submitted the same briefs Foote and other lawyers, including the ACLU, filed in the Clackamas County case.
“We didn’t file a motion seeking any kind of opinion on the constitutionality of it,” Hanlon said. “Judge Bailey brought this up himself.”
The criminal record of the defendant, Cort Haberstich, would have made him eligible for a prison sentence under the law in place before Jan. 1, Hanlon said.
The new law increased the number of prior convictions required for a prison sentence in a felony theft case.
Bailey sentenced Haberstich, who was accused of shoplifting from Kohl’s, to probation anyway.
Tung Yin, a professor at Lewis & Clark Law School, said the immediate legal impact of Bailey’s ruling is limited to that particular case.
“In fact,” said Yin, “it wouldn’t be binding on any other judge in that particular county. The judge in the next courtroom could say, ‘I am the master of my own courtroom and I decide differently.'”
He said the ruling isn’t even binding on Bailey; he could rule differently in the future.
But as word of Bailey’s decision spreads, it may prompt other lawyers to press the matter or lead other judges to take a public stance, he said.
“They might be more willing to follow and say, ‘I agree,'” Yin said.