Constitutional amendment to change sentencing laws is ill-conceived and unnecessary

SJR15 Testimony of Law Professor Douglas E. Beloof in Opposition 3/16/2011

My name is Douglas Beloof. I am a Professor of criminal law and procedure at Lewis and Clark Law School.

Beginning with the premise that the Oregon Constitution should not be amended lightly, unnecessarily or against the recent will of the people, I oppose this resolution.

First, the people removed the reference to vindictive justice from the Oregon Constitution in 1996. In Constitutional terms this is a very recent event. The resolution contradicts and disrespects the recent will of the People who voted by a two-thirds majority to remove the language. SJR 15 seeks to re-insert the language. There is no persuasive evidence that the will of the People has experienced a sea change since that time or that the removal has caused a crisis of constitutional (or even statutory) dimension.

Second, and as importantly, the re-insertion of this language is unnecessary. The language is an historical anachronism. This language originally came into the Oregon Constitution from the Indiana Constitution of 1851. In 1851 there was, arguably, some necessity to affirmatively prohibit vindictive justice. Criminal justice was much more primitive, there were few professional police forces and the nation was still in transition from private prosecutions to state prosecutions. Moreover, a hundred and sixty years ago there were inadequate other controls over vindictive justice. For these reasons, in 1851 the language made some sense.

Things have changed in 160 years. Now, vindictive justice is unconstitutional under the due process clause of the United States Constitution, which applies to the state of Oregon. Furthermore, here in Oregon, vindictive prosecutorial or judicial behavior resulting in prejudice to a defendant is subject to sanctions of professional ethics. Moreover, the Oregon Constitution prohibits cruel and unusual punishment, and provides that no person arrested, or confined in jail, shall be treated with unnecessary rigor. In sum, there is no modern day need for SJR 15.

I suspect, but do not know, that SJR 15 is an attempt to redefine the constitutional framework of existing sentencing laws. If so it is the wrong vehicle. SJR 15 makes no legal difference whatsoever. The traditional rationales for sentencing are: incapacitation of the offender; specific deterrence of the offender, general deterrence to others; retribution (also known a “just deserts”), and rehabilitation (also known as “reformation”). For example, mandatory minimum sentences (and even death sentences) are plainly constitutional and within traditional sentencing rationales under both the United States and Oregon Constitutions. These types of sentences were not judged to be unconstitutionally vindictive before the language was removed from constitution, and these sentences will remain constitutional in the event that SJR 15 becomes law. In other words, SJR 15 will have no legal effect at all on the constitutionality of existing sentencing laws.

In sum, in the modern era, SJR 15 presents a patently unnecessary amendment to Oregon’s constitution. There are adequate modern safeguards from other sources to guard against vindictive justice. Furthermore, the resolution is unnecessary because it will have no impact on the scope or nature of lawful sentencing under either the United States or Oregon Constitution. Moreover, the people removed it from theConstitution only 15 years ago, and the people’s will should be respected by the legislature.

There have been many voices raised in recent years about constitutional amendments which are ill-conceived and unnecessary. This proposed amendment is one of them

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