A Washington County Judge Rules New Property Crime Law As Unconstitutional
A Washington County Judge Rules New Property Crime Law As Unconstitutional

A new Oregon law which cuts down sentences for selected property crimes has been ruled as unconstitutional by a Washington County Circuit Court judge.

Judge Charles Bailey made the ruling while presiding over a shoplifting case but he has not issued a written opinion.

Although the ruling is likely to have limited legal implications, it has again drawn attention to the controversial law that was passed last year, which among other things, cuts down sentences for crimes of identity theft and first-degree theft.

Lawyers Allege Law Flouts Measure 57

The lawsuit started with the District Attorney John Foote of Clackamas County suing the state. Foote argued that the reduced sentences are in fact unconstitutional and they undermine the will of Oregon voters.

According to Foote the law modifies some parts of Measure 57, the initiative approved by voters in 2008 came down hard on repeat property thieves as well as drug offenders. He has sought for the new law to be declared “invalid and unenforceable” or at least some part of it be to be struck down .

Foote further pointed out the bill had been passed in both chambers of the Legislature with simple majorities. As a result it was not in compliance with Article IV of the Oregon Constitution which requires that to pass a “bill that reduces a criminal sentence approved by the people” via an initiative process, there must be two-thirds votes of each house, or a supermajority.

The ACLU of Oregon and the Partnership for Safety and Justice has supported the latest sentencing law. It claims that the measure does not require supermajorities as it revised a 2009 law passed by the Legislature, not Measure 57 itself.

The 2009 law(House Bill 3078) has reduced prison sentences temporarily for property crimes as a measure to tackle the state’s budget crisis. The sentences for property crimes under Measure 57 were phased out two years later.

Issue Of Constitutionality Raised By Judge

Chief Deputy District Attorney Roger Hanlon stated that the judge had asked the prosecution and the defense lawyer in the Washington County theft case to file briefs on the legal issues concerning House Bill 3078.

Hanlon noted that he had submitted the same briefs that Foote and other lawyers, including the ACLU, had filed in the Clackamas County case.

He further added that none of the lawyers had filed a motion seeking an opinion on the constitutionality of the law adding that Judge Bailey had raised the issue on his own.

The defendant in the case Cort Haberstich, had a criminal record which might have made him eligible for a prison sentence under the current law before Jan. 1, Hanlon said.

Ruling May Prompt Other Judges To Take Such Stances

The new rules had increased the number of prior convictions needed for a prison sentence in a felony theft case.

Haberstich¬† who was accused of shoplifting from Kohl’s, was sentenced to probation by Bailey.

According to Tung Yin,¬†a professor at Lewis & Clark Law School, the immediate legal impact of Bailey’s ruling would be limited to the specific case alone. He further noted that it might not be binding even on another judge in the county or even Bailey himself.

However this ruling may lead to lawyers urging other judges to take a similar public stance as well, he said.



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