§ 1.3 Constitutional Challenges to Offenses

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 1.3 CONSTITUTIONAL CHALLENGES TO OFFENSES

A basic premise of criminal law is that no conduct is criminal unless it is expressly forbidden by a statute. There are no common-law crimes in Oregon. State v. Mann, 2 Or 238, 241 (1867); State v. Gaunt, 13 Or 115, 120-21, 9 P 55 (1885). The common law may, however, provide contextual information that is relevant to the interpretation of a criminal statute. See, e.g., Johnson v. Gibson, 358 Or 624, 635, 369 P3d 1151 (2016) ("We presume that the legislature was aware of that existing [common] law."); Montara Owners Ass'n v. La Noue Development, L.L.C., 357 Or 333, 341, 353 P3d 563 (2015) ("The context for interpreting a statute's text includes the preexisting common law, and we presume that the legislature was aware of that existing law."); State v. Nix, 355 Or 777, 791-97, 334 P3d 437 (2014), vac'd, 356 Or 768, 345 P3d 416 (2015) (interpreting animal cruelty statute in light of common-law history and prior versions of legislation).

Statutory provisions may be challenged on the grounds that they violate constitutional rights on their face or as applied in a particular case. See, e.g., City of Eugene v. Lincoln, 183 Or App 36, 39-41, 50 P3d 1253 (2002) (city trespass ordinance, although constitutional on its face, was applied in an unconstitutional fashion when police ordered the protester to leave county fair grounds and prosecuted her for noncompliance). In Lincoln, 183 Or App at 41, the court explained that

[t]he distinction between "facial" and "as-applied" challenges is based not on the validity of the government action involved but on whether the agent of the invalid action happens to be legislative as opposed to executive. A facial challenge asserts that lawmakers violated the constitution when they enacted the ordinance; an as-applied challenge asserts that executive officials, including police and prosecutors, violated the constitution when they enforced the ordinance.

Historically common challenges to penal statutes—ex post facto, vagueness, and overbreadth—are addressed in § 1.3-1 to § 1.3-3.

§ 1.3-1 Ex Post Facto

An ex post facto law is a law that is applied retroactively to events occurring before the law is enacted. "Generally speaking, ex post facto laws punish acts that were legal at the time they occurred, [increase] the punishment for those acts, or deprive the defendant of a defense for those acts." State v. Gallant, 307 Or 152, 155, 764 P2d 920 (1988); see also State v. Wolfe, 368 Or 38, 55, 486 P3d 748 (2021), cert den, 142 S Ct 1219 (2022)...