Portland Property Crimes Attorneys should take note of a recent Oregon Supreme Court decision which makes a significant change in Oregon Law.
By way of background, in 1982 the Oregon Supreme Court issued its opinion in State v. Freeland, a case which set clear limits on prosecutorial discretion. In Freeland, a district attorney charged a person with a crime by taking the case to grand jury, rather than allowing him a preliminary hearing which would have occurred in open court. Mr. Freeland argued that the district attorney had no coherent policy over which cases were taken to grand jury and which went to preliminary hearing, leaving the prosecutor with unfettered discretion. The Oregon Supreme Court agreed and found that such decisions must be made in accord with a systematic, coherent policy, in violations of the “privileges and immunities clause” of Article 1, Section 20 of the Oregon Constitution.
This rule limiting prosecutorial discretion has remained in place for 31 years.
In September of 2013 the Oregon Supreme Court revisited the Freeland decision inState v. Savastano. In Savastano, the defendant challenged a prosecutor’s standardless practice of “aggregating” multiple thefts into a Aggravated Theft charges. Oregon law does allow a prosecutor to take multiple incidents of theft against a single victim that occur over a 180 day period into an Aggravated Theft charge. Ms. Savastano was accused of committing multiple thefts from her employer over an extended period of time. The prosecutor who charged her had no policy governing the choice of which thefts to aggregate, which time periods to choose or whether to aggregate the thefts at all. Savastano argued that, under Freeland, the prosecutor was required to have a systematic and coherent policy in making such decisions. The Court of Appeals, citing Freeland, agreed.
The Oregon Supreme Court accepted review of the case. In their opinion in State v. Savastano, the Supreme Court decided to throw out the Freeland rule. The Supreme Court sometimes modifies or reverses its previous decisions. The Court is hesitant to do so, and tries to follow the rule of stare decisis which is a rule that sets a preference on following the rule in previous decisions, rather than constantly changing the law and causing confusion. In Savastano, the Court found that the requirement of a “coherent and systematic policy” was really never required by Article 1, Section 20 and that Freeland’s holding to the contrary was a mistake.
Of course, the Oregon Supreme Court has the last word in terms of determining what the Oregon Constitution means. Their justification for abandoning the Freeland rule was thorough and well reasoned. Still, as an Oregon Property Crimes Lawyer I am still left to worry about prosecutorial decisions that are not based on sound policies and that are left to individual prosecutors. Regardless of this ruling, we are still able to negotiate cases with district attorney’s and argue for reduced sentences with Judges, which is one of our firms strengths.
By James F. O’Rourke Jr.
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