Upward departure factors are a crock

The most frustrating thing about working for the defense bar is the way a prosecutor can legislate with impunity through the use of upward departure factors. These are charming factors such as “past criminal sanctions have failed to deter”, “persistent involvement in similar behavior”, and “defendant was on supervision at the time of the offense.” Why is this such a big deal? Because in Oregon, we already have 1) A criminal guidelines grid, which gives increasingly severe sentences to defendants as their criminal history score grows over time, correlated to the seriousness of the new offense being committed, 2) mandatory minimum sentences for crimes like rape, assault and kidnapping that actually exceed the amount of time people might do for murder in other states 3) repeat offender schemes that give people 18 to 32 months in prison for property crimes, per incident.

So with these penalties already in place, why is the prosecutor allowed to double the penalty for any crime that he or she sees fit? Oh, and why isn’t there even a grand jury who provides oversight for this process, unlike the grand jury requirement to actually charge someone with a felony? I don’t remember much from my 11th grade government class, but I’m pretty sure that the prosecutor is not in the legislative branch. At least, not in other states.

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