Blog posts and information on substantive Oregon criminal law, as opposed to criminal procedure. Substantive law refers to the acts that can lead to criminal sanctions, and what those sanctions can be. Criminal law changes from state to state, and sometimes from city to city. Most of my posts relate to Oregon law, but some relate to federal law or aren’t specific to any jurisdiction.
Areas of substantive criminal law include:
- DUII
- Sex Offenses
- Collateral Consequences
- Sentencing
- Defenses
No, the police probably can’t make you unlock your phone with your fingerprints.
Judge Steven C. Frucci in Virginia Beach recently decided that a criminal defendant could be forced to unlock his phone using his fingerprints . Reporting of the decision has suggested that the police can make you unlock your phone whenever they feel like it. They can’t, and that wasn’t what the Virginia Beach decision was about. The United States Supreme Court has already decided that police cannot search your cell phone without a warrant or an exception to the warrant requirement. That decision, Riley v. California , applied the Fourth...
read morePunishing Janay Rice
In February, then-NFL running back Ray Rice assaulted his then-fiancée Janay Palmer. His conduct was inexcusable, and the response by law enforcement and the NFL was tepid. Mr. Rice was initially suspended for two games, and, although he was prosecuted, he escaped serious punishment by entering a diversion program. More information has slowly come to light, and public opinion has turned against Mr. Rice and the NFL’s response. Domestic violence is a hard crime to address. The victim is often uncooperative. It is very hard to tell the...
read moreDiversion eligibility and assault
The diversion statutes, ORS 813.200 , et seq permit a person charged with their first DUII to avoid conviction by agreeing to complete treatment and comply with various requirements. For a person eligible for diversion, it’s usually a good idea, because even a strong defense at trial is not ironclad, and the certainty of escaping conviction usually makes it worth the hassle of completing the diversion program. Diversion is not available to a person convicted of vehicular assault within the last fifteen years, which is a reasonable enough...
read moreShould rapists have parental rights?
I just saw this article from the Courthouse News Service about the ugly fallout of the rape, and resulting pregnancy, of a 14-year-old girl. The 20-year-old rapist has been convicted and placed on probation for 16 years. He has also been ordered to admit paternity and to initiate proceedings in family court, apparently to set child support and maybe even visitation. The victim brought suit, asking the Massachusetts courts not to force her to participate in legal proceedings involving her rapist. It is deeply troubling to order a 14-year-old...
read moreWe will never know what George Zimmerman did
In light of the not-verdict, there are a lot of opinions floating around about George Zimmerman. I haven’t got one; I don’t know what happened that night, and neither do you. I felt more sympathy for Trevon Martin than for Mr. Zimmerman; the latter came across as a disappointed, wannabe police officer, and I’ve had a lot of clients who bore a close resemblance to Mr. Martin. But Mr. Zimmerman is not guilty because I, as a half-hearted observer of the case, found him unsympathetic. The only person who really knows what happened was Mr....
read moreWould you rather trust Edward Snowden or the NSA?
As you know, unless you’re living under a rock, Edward Snowden is a former National Security Agency contractor who released records relating to the NSA’s PRISM project. Although PRISM’s scope remains obscure, it appears that the NSA has been mining all sorts of data from big tech and communications companies. That data surely includes so-called ‘metadata,’ which is information about phone calls and e-mail messages, such as the sender and recipient. Response to Mr. Snowden’s revelations has been mixed; the data sought is not...
read moreOregon’s age of consent needs to be changed.
Oregon’s sex-crime laws, which appear with other “person” crimes in Chapter 163 of the Oregon Revised Statutes are a bewildering mess. In addition to rape and sodomy (sex without consent) there is sexual abuse (sexual touching without consent) unlawful sexual penetration (just what it sounds like) child-pornography offenses, and contributing to the sexual delinquency of a minor. Some of those offenses make sense as they are. Rape and sodomy are of varying degrees of seriousness depending on the victim’s age and whether there was force,...
read morePay parity for public defenders should have been passed a long time ago.
Public defenders in the federal system are paid roughly the same as their counterparts at the US Department of Justice, but state-level public defenders are not, and the pay disparity, is substantial. HB 3463 proposes pay parity for public defenders. That is the right thing to do, both as a matter of constitutional law, sound policy, and justice. Public defenders are not as politically popular as police officers, prosecutors, and jails and prisons, but all of those things are necessary expenses in order to prosecute crimes and punish...
read moreOregon’s restitution laws need reform
Over the last ten years or so, the legislature has changed the statutes relating to restitution. Restitution refers to a criminal defendant’s obligation to pay the victim for the economic harm caused by the crime. Restitution was once intended to be primarily a part of the punishment, and the judge had the discretion to impose reduced restitution, or no restitution. Now, restitution is intended to compensate the victim, and the court is required to impose all the victim’s financial costs as restitution. I think that’s a bad policy,...
read moreSenator Crapo’s alcohol problem
In Oregon, and in most states, driving with a blood-alcohol level of .08% or higher is driving under the influence of intoxicants, or DUII. The .08% is defined, semiofficially, by federal law, and it represents a balance between increasing public safety (a low number would capture more drivers) and individual autonomy (if the number is too low, no one could have a few drinks at dinner and still drive home). It’s probably necessary to have a single figure for everyone, but in fact the .08 figure is too high for people who don’t...
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