Limiting prosecutorial discretion under the Oregon Environmental Crimes Act: a new solution to an old problem.

I.   INTRODUCTION                                       1674
II.  THE HISTORY AND DEVELOPMENT OF SECTION 468.961     1676

     A. Legislative History                             1677


     B. The Content of Section 468.961                  1679

III. THE NEED TO CONTROL PROSECUTORIAL DISCRETION       1680

     A. Prosecutorial Discretion as a Necessary Evil    1680


     B. Current Restrictions Compared

        to Section 468.961                              1682
        1. Probable Cause                               1683
        2. Internal Policies                            1684
IV.  SECTION 468.961 AS GUIDE                           1685

     A. Promotion of Uniformity,

        Consistency, and Cooperation                    1686

     B. Use of Section 468.961 by

        the Regulated Community                         1687
V.   SECTION 468.961 AS GUARDIAN                        1688

     A. Bad Filing                                      1688

        1. Attacking the Instrument                     1689
        2. Attacking the Prosecution                    1690

     B. Questionable Calls                              1691

        1. Statutory Grounds                            1692
        2. Constitutional Grounds                       1693

     C. Bad Faith                                       1695

        1. Vindictive Prosecution                       1695
        2. Non-Vindictive Bad Faith                     1697
VI.  CONCLUSION                                         1697

I. INTRODUCTION

Over the past two decades, criminal enforcement of environmental laws has risen in importance.(1) Criminal sanctions are now an essential part of most environmental programs.(2) In fact, they are an agency's "most effective deterrent."(3) Criminal santions, however, inject a new and troublesome issue into the environmental context--excessive prosecutorial discretion. The American system of justice necessarily provides prosecutors with broad decision-making power. This power is susceptible to both abuse and error under normal circumstances, and environmental law by its nature further increases the likelihood of misuse.(4) In response to this problem, states have developed various methods to control prosecutors' discretion without totally removing it from the system.(5)

In 1993, the Oregon legislature responded to this problem with a provision in the Oregon Environmental Crimes Act (OECA) that addresses prosecutors' use of criminal sanctions for environmental violations.(6) The product of a political compromise, section 468.961 of the Oregon Revised Statutes requires that the Attorney General, together with local district attorneys, develop legally prescribed guidelines for prosecution.(7) Furthermore, prosecutors(8) bringing a felony charge under the OECA must submit certification to the court that they followed the guidelines.(9) Thus, section 468.961 has a dual role. First, it is a guide. By mandating the development of internal guidelines to provide prosecutors with direction in pursuing environmental criminals, it promotes uniformity and consistency in the OECA. Second, the section is a guardian, providing procedural protection to defendants charged under the OECA. Therefore, in order to avoid wrongful prosecution, a defendant could invoke this legal restriction on a prosecutor's discretion.

This comment analyzes both of section 468.961's roles and identifies areas left unclear by the statute. Section II outlines the content of section 468.961 and traces its colorful legislative history. Section III further expands on the need for prosecutorial discretion and the problems such discretion creates. It then compares section 468.961 to currently existing controls on discretion. Section IV explains section 468.961's role as guide, identifying the limits of that role in curbing wrongful prosecutions. Finally, section V explains section 468.961's role as guardian, arguing that in this role will section 468.961 be most effective as a new solution to the old problem of excessive prosecutorial discretion.

II. THE HISTORY AND DEVELOPMENT OF SECTION 468.961

Prior to 1993, Oregon lacked sufficient criminal enforcement authority for environmental violations.(10) Oregon was one of only five states that lacked felony-level penalties for environmental crimes.(11) Without felony-level sanctions, enforcers had trouble deterring "bad actors" who caused serious environmental harm.(12) Furthermore, Oregon faced possible revocation of federal authority for some of its environmental programs.(13) For example, the 1990 amendments to the Clean Air Act require states to have adequate criminal enforcement authority to retain a stateadministered permitting program.(14) Without felony authority, Oregon would fail to qualify to run its own permitting program, and the federal Environmental Protection Agency (EPA) could take over.(15) The legislature wanted to fill this large gap in the Oregon environmental enforcement program's effectiveness.

A. Legislative History

Senate Bill 88 (SB 88)(16) was the first version of the OECA that the legislature considered. Sponsored by the Oregon Department of Environmental Quality (DEQ) and the Oregon District Attorneys Association (ODAA), among others, SB 88 created felony penalties for violations of environmental laws.(17) In fact, any knowing or intentional violation of any environmental law, rule, or permit covered by the act was a felony offense.(18) Associated Oregon Industries (AOI) opposed this version. It claimed that the bill made "a gardener into a felon.... Under SB 88, if someone planting a tree piled dirt near a sewer opening and it rained, that person arguably has committed a felony."(19) AOI also felt that this excessive sweep mixed poorly with the traditional concept of broad prosecutorial discretion. Without guidance or restriction, AOI feared prosecutors could mistakenly or even intentionally bring an inappropriate charge.(20) SB 88 did not discourage prosecutors from charging technical violators instead of just those "bad actors" the law should deter.(21)

AOI wanted the law to reflect a policy of prosecuting only "bad actors" or substantially harmful violations.(22) Negotiations began between AOI and the coalition of regulators--ODAA, DEQ, and the Oregon Department of Justice (DOJ). AOI first proposed that all prosecutors secure DEQ approval before deciding to charge a crime under the OECA.(23) The ODAA complained that this proposal was overly restrictive, and an impasse resulted.(24) The question of a formal restriction on discretion was set aside, and the parties negotiated the rest of the bill.(25) AOI proposed several other changes to restrict the scope of the bill, including narrowing the language and protecting auditing confidentiality.(26) The bill then began to take its final form--Senate Bill 912 (SB 912).

However, the problem of prosecutorial discretion still impaired support of the bill. Other states' controls on discretion, such as the creation of a task force(27) or centralization of authority,(28) were not feasible in Oregon due to a lack of political and financial resources.(29) The bill was in danger of dying before reaching the legislative floor.(30) Then, as one participant noted, the parties reached an "eleventh-hour compromise" to save the OECA.(31) AOI proposed that the check on discretion be modeled after the federal sentencing guidelines.(32) ODAA approved of this idea, and what became section 468.961 was drafted and added to the bill.(33)

B. The Content of Section 468.961

Section 468.961 has three basic provisions. First, felony prosecutions under the OECA require the personal approval of the county district attorney or the state attorney general.(34) Second, each district attorney must develop guidelines for prosecuting environmental crimes. These guidelines must include the criteria listed in the statute.(35) In addition, DOJ, in consultation with ODAA and after appropriate public comment, must develop model guidelines using at least the statutory criteria.(36) District attorneys may adopt these model rules in lieu of developing their own.(37) Third, prosecutors who file charges under the OECA must submit certification to the court, signed by either the district attorney or the attorney general, that the charges are being brought in accordance with and upon consideration of the guidelines.(38) Thus, section 468.961 is both guide and guardian. It requires development of written internal guidelines to direct the discretion of prosecutors toward the statutory targets (bad actors or substantial harm), and, through judicial review, it protects non-targeted defendants from inappropriate prosecutions.(39)

III. THE NEED TO CONTROL PROSECUTORIAL DISCRETION

Broad prosecutorial discretion is essential to the American criminal justice system. However, such discretion is open to abuse and error, especially in the environmental context. The American system uses two major tools to strike a balance between the need for broad discretion and the dangers of abuse or mistake: probable cause and internal guidelines. Section 468.961 adds a third tool to the belt.

A. Prosecutorial Discretion as a Necessary Evil

Broad discretion is fundamental to the efficiency of the American criminal justice system. Nondiscretionary enforcement would dilute the effectiveness of criminal law. Legislatures tend to make criminal statutes excessively broad because of administrative convenience.(40) Without discretion, a prosecutor would quickly become a "general [attacking] the enemy on all fronts at once."(41) Instead of focusing limited resources on the arrest and conviction of bad actors who present the greatest threat to public safety, the system would be forced to prosecute any and all actors who have broken a law in the slightest sense. Discretion, moreover, provides "early in the decision-making process a flexibility and sensitivity not available in [other] system[s] .... It permits a prosecutor ... to consider special facts and circumstances not taken into account by the applicable rules."(42)

Broad discretion, however, is susceptible to abuse and mistake. A prosecutor's ability to decide what crimes to charge creates tremendous leverage over potential defendants. For example, a prosecutor can use broad statutes like the Racketeer Influenced and Corrupt Organizations Act (RICO)(43) to force an unfair plea bargain upon defendants who barely fit the technical requirements of that law.(44) A prosecutor could also innocently misinterpret a complex law and charge a defendant who was not the focus of the legislative purpose.(45) The more broad and complex the law, the greater the potential for abuse and error in discretion.

Unfortunately, most environmental laws are very broad and complex. The definitions used often encompass a wide variety of activity. For example, the Clean Water Act regulates "point sources," defined as "any discernible, confined and discrete conveyance."(46) This covers runoff which flows through a concrete culvert from a landfill to a stream,(47) or a settling pond which overflows during a sudden snow melt and discharges toxic chemicals into a nearby creek.(48) The Resource Conservation and Recovery Act (RCRA) regulates "solid waste," defined as "any garbage, refuse, sludge ..., and other discarded material."(49) "Discarded material" includes even materials intended for shipment to off-site recycling plants.(50) Environmental laws are also very complex. A federal appellate judge once described consideration of RCRA as a "mind-numbing journey."(51) Many in the Oregon regulated community have stated that, given the highly technical requirements of RCRA, "it is difficult to be in business and not violate [it]."(52) Few prosecutors in Oregon are familiar with environmental laws.(53) Inexperience could lead prosecutors to pursue criminal sanctions for technical violations that are better dealt with through administrative fines and penalties.

The breadth and complexity of environmental law further combine with its unique political nature to increase the chance that prosecutors will abuse their discretion if left completely unchecked. Typically, environmental crimes victimize more than a single person or groups of persons.(54) "[O]ne must realize that damage to the environment also victimizes future generations. In addition, environmental crime often constitutes an often unquantifiable economic loss ...."(55) Thus, environmental crimes can be higher in profile than most other criminal regulatory offenses and tend to generate stronger public opposition. Pressure from constituents could coerce locally elected district attorneys into charging local industries for technical violations that would be better handled administratively.(56)

B. Current Restrictions Compared to Section 468.961

Oregon currently limits the discretion of prosecutors through the devices of probable cause and internal office policies. A prosecutor must show probable cause, either in a grand jury or a preliminary hearing, to charge a person with a felony.(57) Should probable cause exist, internal policies still may guide a prosecutor away from charging a particular defendant who does not represent the focus of the particular statute.(58) By comparison, section 468.961 goes beyond either of these two existing restrictions. Like internal guidelines, it attempts to prevent a prosecutor from bringing an inappropriate charge even though probable cause exists. Unlike internal guidelines,(59) forces outside the prosecutor's office influence section 468.961 constraints.

1. Probable Cause

The Oregon Constitution requires that prosecutors charge felonies by indictment or information.(60) Prosecutors obtain indictments from grand juries during an ex parte proceeding in which they must show the jury, through sufficient evidence, that probable cause exists to believe the defendant committed the crime charged.(61) In the alternative, prosecutors can file an information alleging probable cause and then prove sufficient evidence for cause later at a preliminary hearing in front of a judge.(62) A preliminary hearing restricts discretion slightly more than a grand jury, since the hearing is adversarial rather than ex parte.(63) Both devices, however, use probable cause to limit a prosecutor's power to bring a charge. If a judge or a grand jury is not convinced that probable cause exists to believe the defendant has committed the crime charged, a prosecutor cannot proceed to trial.

Probable cause provides strong protection for defendants when evidence is insufficient, but no protection when a charge is inappropriate. "[T]here are--as a practical matter--no comparable checks upon [the prosecutor's] discretionary judgment of whether or not to prosecute one against whom sufficient evidence exists."(64) Under the OECA, for example, a person who violates RCRA by knowingly storing hazardous waste without a permit for ninety-one days (one day over the ninety day limit) has technically committed a felony.(65) Even the most innocuous reason for the violation would not bar the charge. For example, the storer's normal transporter may not have been available, and so the storer decided to wait an extra day rather than pay more for a new transporter to come. This is still a violation of the letter of the law. However, a felony charge here is inappropriate; this person is not a bad actor, nor has the action caused a threat of substantial harm. Probable cause would not prevent a charge, but section 468.961 will. It discourages prosecutors from bringing charges under these circumstances.(66)

2. Internal Policies

Internal office policies do protect against inappropriate charges, but are less restrictive than section 468.961 because they are solely the product of the prosecutor's office. Oregon prosecutors often use formal or informal policy guidelines to direct their charging decisions.(67) The guidelines provide a road map for individual prosecutors, promoting consistency within the office, among different counties, and with the intent of a particular statute.(68) Internal guidelines usually address specific laws which are especially broad.(69) For example, under the RICO guidelines for United States Attorneys, a prosecutor must consider various aspects outside of the elements of the law to determine if a RICO charge is appropriate.(70) By guiding a prosecutor's decision, internal policies make the RICO laws more effective and protect defendants from error.(71) However, development of such guidelines and their content is left entirely within the discretion of the prosecutors. Absent any legislative control, prosecutors can make the guidelines as restrictive as they like, and adhere to them only when they feel the legislative purpose of the law is served.

Section 468.961 is more restrictive than this. It too seeks to prevent inappropriate charges by accounting for factors outside the elements of a crime, but it contains more outside influences to its development and implementation, ensuring greater fairness. First, the law mandates both the factors to be considered and the guidelines themselves. The final guidelines must, at a minimum, "consider and apply" the provisions stated in the text of the statute.(72) Second, section 468.961 requires the development of model guidelines by a joint effort between DOJ, ODAA, and the public at large.(73) District attorneys who choose to develop their own guidelines instead of adopting the model must still adhere to the statutory minimum.(74) Finally, courts police section 468.961.(75) The district attorney or attorney general must approve all OECA prosecutions, and certify that approval to the court.(76) These influences combine to make section 468.961 more restrictive in preventing inappropriate charges than internal office policies.

IV. SECTION 468.961 AS GUIDE

The first role of section 468.961 is as a guide to local prosecutors, directing the pursuit of criminal charges against the appropriate environmental violators. As a guide, it can promote interagency cooperation between DOJ, DEQ, and the local prosecutor. In addition, regulatory targets themselves can use the guidelines to help conform their conduct to the law.

A. Promotion of Uniformity, Consistency, and Cooperation

Section 468.961 will provide local prosecutors with a valuable tool for consistency and uniformity. The minimum standards established in the section guarantee that each county will retain enforcement authority roughly equal to other counties.(77) The model guidelines developed under section 468.961(3), to the extent they are adopted by local counties, add further consistency and uniformity essential to the effectiveness of the OECA. Uniformity promotes the integrity of the system, and consistency promotes deterrence. The general public is more likely to support a criminal system which is not seen as arbitrary. Potential violators are less likely to violate laws that are consistently enforced.

As a guide, section 468.961 also promotes interagency coordination, an essential part of enforcement. The statute indirectly requires local prosecutors to consult DEQ and other appropriate agencies before deciding on enforcement. The statute requires the guidelines to include, among other things, consideration of compliance history,(78) magnitude of harm,(79) and the "appropriate agency's current and past policy ... regarding enforcement."(80) None of this information is available without consultation. Although the local prosecutor retains charging discretion, such coordination with the appropriate agency should further protect violators from inappropriate indictments. In addition, interagency coordination will allow untrained prosecutors to take advantage of agency expertise. Prior to obtaining training, local prosecutors can use the guidelines as a reference to guide preliminary decisions on whether to investigate a potential violator.(81)

B. Use of Section 468.961 by the Regulated Community

A uniform prosecution policy can help regulatory targets conform their conduct to the law. Most industries do not want to violate the law, thus incurring civil, and possibly criminal, sanctions.(82) Yet, the breadth and complexity of many environmental laws makes compliance difficult; often the agencies themselves are unsure of the extent of regulation.(83) Consulting the guidelines can help the regulatory target determine what is illegal and what is not. Knowing how prosecutors direct their discretion, regulated entities can focus their efforts on compliance and not worry about committing technical errors which result in felonies.

This knowledge, of course, can also work adversely. A target can use the guidelines to determine what it can "get away with." Instead of conforming its conduct to legal behavior, it could use the guidelines to just barely avoid behavior which merits criminal prosecution. Section 468.961 provides some protection against this problem. The guidelines include a determination of a person's "good faith efforts to comply with the law to the extent practicable."(84) A history of using the guidelines to walk the tightrope between prosecution and nonprosecution does little to show such good faith.(85)

Section 468.961 can do much to solve the problem of excessive prosecutorial discretion in its role as guide. However, restricting the statute to this role alone will limit its effectiveness. Some errors and abuses will still slip through the cracks, and when they do, section 468.961 must also be available as a guardian to protect defendants from inappropriate prosecutions.

V. SECTION 468.961 AS GUARDIAN

Section 468.961's effectiveness in its role as guardian will in large part depend on the courts' support. Although section 468.961(4) requires a prosecutor to submit certification, the statute is silent as to the result of a failure to follow this condition.(86) However, the legislative history indicates that a prosecutor's failure to follow section 468.961(4) should result in a successful motion to set aside the accusatory instrument.(87) Unfortunately, in most cases Oregon law does not provide a clear procedural device which a defendant can use to enforce section 468.961. Where a device does exist, the law does not supply a clear direction for a court to take in deciding on dismissal.

The OECA is newly enacted,(88) so there is no case law interpreting how it will work as a guardian. However, through hypothetical examples, the potential of this role becomes obvious. The examples discussed below--bad filing, questionable call, and bad faith--reflect the concerns which the parties involved in developing section 468.961 voiced during legislative hearings, and so reflect what the drafters designed the guardian to protect against. When possible, Oregon courts should construe the statute to reflect that intent, allowing section 468.961 to guard against inappropriate prosecutions wherever it can.

A. Bad Filing

A bad filing is a procedural error by the prosecutor under section 468.961(4). The prosecutor may neglect to obtain the proper signature, neglect to get any signature at all, or forget to file the certification entirely. Although made in good faith (meaning the guidelines were properly considered), the prosecutor has failed to follow the technical procedures of the statute. Under this scenario, a defendant can attack either the instrument or the prosecution.(89) Neither method, however, will succeed at anything more than forcing the prosecutor to amend the instrument. Although a bad filing technically violates section 468.961, calling forth the guardian, it is not serious enough to justify dismissal.

1. Attacking the Instrument

Section 468.961's legislative history suggests that a defendant can ask a court to dismiss the instrument in a bad filing.(90) There are two problems with this suggestion. First, no procedural device allows a defendant this attack, and second, even if a court allows the attack, it will not order a dismissal.

In Oregon there are two methods by which a defendant may attack an instrument--filing either a motion to set aside or a demurrer. A motion to set aside can be supported only on specific statutory grounds, which do not include section 468.961.(91) A demurrer could apply to a bad filing,(92) but only if the court considers the certification as part of the accusatory instrument. A defendant may not ask the court to rely on extrinsic evidence to sustain this type of challenge.(93) If the certification is not part of the "face" of the instrument, a bad filing is not grounds for a demurrer. The OECA is silent on where the certification fits into the paper trail of the criminal process, so the courts are left with a problem of interpretation.

Although courts should generally interpret Oregon law to allow section 468.961 to act as a guardian, this is one instance where it does not matter. Even if a court found reason to allow these challenges, it would not be likely to dismiss the charges. Matters of form, such as clerical errors or matters not essential to a charge, do not result in dismissal under a demurrer.(94) A bad filing is a clerical error, so a court would only tell the prosecutor to resubmit the instrument together with the proper certificate.

2. Attacking the Prosecution

Attacking the prosecution means attacking the entire case rather than just the accusatory instrument itself. In this instance, section 135.755 of the Oregon Revised Statutes provides a procedural vehicle. This statute allows a judge discretion to dismiss a case in furtherance of justice.(95) A bad filing, the defendant could argue, undermines justice by denying the protection of section 468.961. If no certificate is submitted, or if the certificate is improper, the court has no proof that the prosecutor considered the guidelines and no assurance that the charges are consistent with the intent of the law to prosecute "bad actors" and "substantial harm."

However, even though the vehicle exists, section 468.961 again will not provide much protection. There still is not a strong enough argument for dismissal for a bad filing. Dismissal under section 135.755 of the Oregon Revised Statutes is improper when "there is not enough on the defendant's side of the scales 'to justify frustrating the public's right to have the charge against [the] defendant prosecuted.'"(96) The scales seldom balance in the defendant's favor. Courts have rejected as justifications the unavailability of a witness for the prosecution due to a mistake by the prosecutor,(97) a five month delay in the trial due to prosecutor scheduling errors,(98) and a failure of a prosecutor to provide the defendant's file at trial.(99) Dismissal for justice is "reserved for severe situations,"(100) and while no case as yet has defined the level of severity needed, a bad filing does not qualify. A bad filing in most circumstances can be easily cured by a judge instructing the prosecutor to resubmit the certificate.

While this result seems contrary to the legislative history of section 468.961, it is not very controversial. A bad filing does the defendant and the statutory scheme little violence. Prosecutors should avoid bad filings, but the public should not have to pay for a prosecutor's good faith mistake. Continuing the prosecution in such a case is appropriate as long as the section 468.961 guidelines justify the charge. Section 468.961 must be a discriminating guard; it must marshal its resources to protect against the more dangerous abuses represented by questionable calls and bad faith.

B. Questionable Calls

A questionable call results when a prosecutor has properly followed the provisions of section 468.961 but, again in good faith, has made a disputable error in judgment in bringing the charge. In this hypothetical the prosecutor is neither obviously wrong nor obviously right about whether the guidelines justify prosecution. Given valid arguments from both sides, the prosecutor's decision in this situation will probably receive judicial deference.

Before the judge can make this choice, the defendant must raise the issue on motion. Again, motions to set aside or demurrers are inappropriate. As discussed, a motion to set aside is restricted by the law.(101) A demurrer supports a different challenge. A demurrer is based on the assertion that the instrument does not state sufficient facts to constitute a crime.(102) In a questionable call scenario, the defendant is conceding sufficiency and is instead questioning the appropriateness of the charge itself. A dismissal for justice,(103) however, provides a procedural vehicle to challenge a questionable call. If the prosecutor is wrong about the guidelines, injustice is done to the defendant. Section 468.961 is the law, and even a good faith prosecution that is contrary to its guidance is inappropriate, unfair, and a "severe" enough situation to justify dismissal. A defendant could seek dismissal of a questionable call through a motion for justice on either statutory or constitutional grounds. Each argument, however, faces a different obstacle which may still prevent section 468.961 from guarding a defendant.

1. Statutory Grounds

A defendant could argue that based on the guidelines and the literal terms of the statute, the prosecutor was wrong in charging the crime. This is not a precedential argument;(104) the defendant merely contends that section 468.961 does not mandate prosecution, while the prosecutor contends that it does.

This argument faces a difficult hurdle. The defendant must prove that the prosecutor's interpretation of section 468.961 is inconsistent with the guidelines, and for several reasons the courts will be very reluctant to question the prosecutor's decision. First, even within the guidelines of section 468.961, a prosecutor has substantial discretion.(105) For example, the criteria require consideration of "the person's cooperation,"(106) the "complexity and clarity of the statute ... violated,"(107) and "the extent to which the person was or should have been aware of the requirement violated."(108) Each of these criteria supplies the prosecutor with a great deal of maneuverability. Second, if the procedures were followed in good faith,(109) both the prosecutor and the district attorney for the county have reviewed the case,(110) which adds to the decision's credibility. Finally, the statute does not provide a method by which the court can balance the arguments. Section 468.961 does not provide for substantive review by the court of the charging decision. It only requires the court to verify through certification that the prosecutor has considered the guidelines.(111) A prosecutor's "discretionary decisions, even if not subject to judicial 'supervision,' are not immune from judicial scrutiny."(112) Despite this lack of immunity, however, a court naturally will accord a prosecutor's reasoning under section 468.961 greater weight than a defendant's.

2. Consitutional Grounds

Arguments grounded in precedent outside of section 468.961 stand the best chance of success, and the strongest argument outside the statute is one based on the Constitution.(113) Even absent express statutory authority, a court may dismiss a case on constitutional grounds.(114) In a questionable call scenario, the prosecutor's discretion may infringe on a defendant's right to equal protection of the laws.(115) Unequal treatment violates the equal protection clause, whether based on a policy of systematic discrimination(116) or ad hoc discretion.(117) Thus, instead of arguing that section 468.961 requires a different outcome, a defendant might argue that since other people in similar situations were not prosecuted, no prosecution should result here. However, the argument would probably not succeed.

A prosecutor's ad hoc decision to indict a defendant rather than proceed by preliminary hearing can result in a dismissal based on equal protection.(118) The Oregon Constitution requires that a prosecutor charge felonies either by information, which includes a preliminary hearing, or by grand jury indictment.(119) Due to its adversarial nature, a preliminary hearing is favorable to a defendant.(120) The decision of how to proceed generally is left entirely in the prosecutor's discretion, but a completely ad hoc decision can result in dismissal.(121) An ad hoc decision to prosecute under section 468.961 brings up similar constitutional concerns. The questionable call denies the defendant, in a similar situation as others, the protection of section 468.961.

However, section 468.961 itself hampers this argument. A decision directed by guidelines is not ad hoc. If the defendant cannot show bad faith discrimination by the prosecutor, the equal protection argument will fail. The defendant receives equal protection if the prosecutor uses section 468.961 in considering the case. So long as the prosecutor rested the decision on "meaningful criteria" that results in substantially equal treatment, the decision does not violate equal protection.(122) Section 468.961 is meant only to prevent totally unguided decisions. A defendant may disagree with the result, but, absent proof of bad faith by the prosecutor, that does not mean the defendant was denied equal protection.

Once again, section 468.961 is unlikely to provide a successful defense to questionable calls, but again, this is not very controversial. If the prosecutor carefully considers the guidelines, the intent of section 468.961 is satisfied. But what about the guardian? Is there any situation in which section 468.961 will be called upon to protect defendants from wrongful prosecutions?

C. Bad Faith

Bad faith is just such a situation; it adds the element of culpability to the questionable call scenario. In this hypothetical, a prosecutor intentionally disregards the guidelines. Analysis of this hypothetical involves three factors: the motive of the prosecutor, the defendant's ability to prove that motive, and the guidelines' recommendations regarding prosecution despite bad faith. If a prosecutor is retaliating against the defendant for exercising certain lawful rights, and if the defendant can prove it, the law provides a remedy regardless of section 468.961: dismissal for vindictive prosecution.(123) In this context, section 468.961 provides only some additional evidentiary support to the defendant. However, if the prosecutor is acting in bad faith but not in retaliation,(124) section 468.961 is more useful. In this situation, dismissal will turn on whether or not the guidelines clearly justify the criminal charge.

1. Vindictive Prosecution

A prosecutor's discretion has never been completely uncontrolled. For example, a prosecutor cannot retaliate against a defendant by adding previously undiscussed charges in response to the rejection of a plea bargain.(125) Retaliation through charging a defendant without considering section 468.961 should also result in dismissal. A prosecutor simply is not allowed "to punish [a defendant] for doing what the law plainly allowed [the defendant! to do."(126) For example, if a prosecutor charges a defendant with extra crimes under the OECA in retaliation for that defendant's reluctance to negotiate a plea bargain, the retaliatory charges must be dismissed.

Since the focus of the dismissal for vindictive prosecution is on the prosecutor's malicious intent, section 468.961 does not alter the outcome of the case. If the defendant can prove a vindictive motive of the prosecutor, compliance with the guidelines is irrelevant. Section 468.961 may, however, add some evidentiary weight to the defendant's case for dismissal. If the guidelines suggest the prosecutor should not have brought the charges, or if the prosecutor obviously ignored the section altogether, dismissal is all the more appropriate. Conversely, if the guidelines suggest a charge should have been brought, a court will dismiss only those charges which were brought in retaliation.(127) If the guidelines are unclear, the charges not brought out of vindictiveness will, and should, probably stand.(128) Therefore, section 468.961 does not add any substantive weight to the doctrine of prosecutorial vindictiveness. At best, it merely provides evidence that a defendant can use to argue for dismissal.

2. Non-Vindictive Bad Faith

Section 468.961 will play a greater role in dismissal where the prosecutor's bad faith is not due to retaliation. Bad faith short of vindictiveness does not necessarily require dismissal.(129) Absent evidence of discrimination or vindictiveness, the prosecutor's motives are generally isolated from judicial review.(130) Dismissal may still turn, however, on other reasons, such as section 468.961. Under a motion to dismiss for justice, proof of a prosecutor's bad faith should be a factor the court considers in its decision. If section 468.961 clearly justifies prosecution, a court should not act against the public's interest in having the law enforced. However, if the factors favor the defendant even slightly, the prosecutor's bad faith should push the court towards dismissal of the charge. Unlike the questionable call situation, the court should not defer so readily to a prosecutor who acts in bad faith and whose judgment may have been clouded by an improper motive.

The statutory language and legislative history of section 468.961 are both silent on the issue of a prosecutor's bad faith, so there is no clear way to interpret this situation. Given the option, courts should give some weight to a defendant's cause and support section 468.961's role as guardian. Less weight should be given to a prosecutor's interpretation if bad faith is suspected due to its likely bias. Of course, the defendant's interpretation is biased as well, but the intent behind section 468.961 was to guide and control prosecutors, not defendants.(131)

VI. CONCLUSION

Like many political compromises, section 468.961 began with lofty ambitions and ended up somewhere short of crashing to Earth. Defining where the section floats is a task left to the legal community. Section 468.961 is an attractive, new solution to the old problem of excessive prosecutorial discretion, but its effectiveness could be blunted if prosecutors do not take the guidelines seriously or the courts refrain from enforcement. The weaker the section is, the less it will generate uniformity, consistency, and public backing. Both prosecutors and the courts must take section 468.961 seriously to protect its value and effectiveness in accomplishing the goals of the OECA. Where possible courts should interpret the law to strengthen it, rather than weaken it. Section 468.961 is more than an "eleventh-hour" compromise; it is the plan of attack which, if followed, will help make the OECA into a model for efficient and effective criminal enforcement of environmental crime.

(1.)Many observers have noted this phenomenon. See, e.g., Helen J. Brunner, Environmental Criminal Enforcement: A Retrospective View, 22 ENVTL. L. 1315 (1992); James M. Strock, Environmental Criminal Enforcement Priorities for the 1990s, 59 GEO. WASH. L. REV. 916 (1991).

(2.)Strock, supra note 1, at 916 (citing Criminal Enforcement of Environmental Law Seeks Deterrence Amid Need for Increased Coordination, Training, Public Awareness, Env't Rep. (BNA) 800, 801 (Sept. 26, 1986)).

(3.)Id.

(4.)See discussion infra part III.A.

(5.)See infra notes 23-24 and accompanying text.

(6.)Oregon Environmental Crimes Act, ch. 422, 1993 Or. Laws 956 (codified at OR. REV. STAT. [sections] 468.961 (1993)).

APPROVAL OF ATTORNEY GENERAL OR DISTRICT ATTORNEY BEFORE BRINGING FELONY CHARGE; GUIDELINES FOR BRINGING FELONY CHARGE; MODEL GUIDELINES. (1) Except in exigent circumstances, no person shall be charged with a felony under ORS 468.922 to 468.956 without the personal approval of the district attorney of the county or the Attorney General of the State of Oregon.

(2) In order to promote consistency in bringing criminal prosecutions under ORS 468.922 to 468.956, the district attorney of each county shall adopt written guidelines for filing felony criminal charges under ORS 468.922 to 468.956. The written guidelines, at a minimum, shall require the district attorney to consider and apply the following factors in determining whether to file criminal charges:

(a) The complexity and clarity of the statute or regulation violated;

(b) The extent to which the person was or should have been aware of the requirement violated;

(c) The existence and effectiveness of the person's program to promote compliance with environmental regulations;

(d) The magnitude and probability of the actual or potential harm to humans or to the environment;

(e) The need for public sanctions to protect human health and the environment or to deter others from committing similar violations;

(f) The person's history of repeated violations of environmental laws after having been given notice of these violations;

(g) The person's false statements, concealment of misconduct or tampering with monitoring or pollution control equipment;

(h) The person's cooperation with regulatory authorities, including voluntary disclosure and prompt subsequent efforts to comply with applicable regulations and to remedy harm caused by the violation;

(i) The appropriate regulatory agency's current and past policy and practice regarding the enforcement of the applicable environmental law; and

(j) The person's good faith effort to comply with the law to the extent practicable.

(3) In order to promote consistency and uniformity in prosecutorial policies, the Attorney General, in consultation with the Oregon District Attorney's Association, and after appropriate opportunity for public comment, shall adopt model guidelines for prosecution of environmental crimes. The Attorney General's model guidelines shall provide for consideration and application of factors described in subsection (2) of this section. A district attorney may fulfill the district attorney's responsibility under subsection (2) of this section by adopting the Attorney General's model guidelines.

(4) Prior to or in conjunction with the filing of felony charges under ORS 468.922 to 468.956, the district attorney or the Attorney General shall file a certification with the court that the guidelines described in subsections (2) and (3) of this section have been applied and that, in the opinion of the district attorney or Attorney General, as the case may be, the criminal charges are being filed in accordance with the guidelines.

Id.

(7.)Id. [sections] 468.961(1)-(3).

(8.)For the purposes of this comment, a district attorney--the actual elected official of the county--is distinguished from a prosecutor--the nonelected assistant district attorneys who do most of the trial work.

(9.)OR. REV. STAT. [sections] 468.961(4).

(10.)See Testimony of Department of Environmental Quality: Hearing on S. Bill 912B-Engrossed Before the House Judiciary Comm., 67th Or. Leg. Assembly (June 23, 1993) [hereinafter DEQ Hearing] (statement of Fred Hanson, Director, DEQ).

(11.)Id.

(12.)Id.

(13.)Id.

(14.)Clean Air Act [sections] 502(b)(5)(E), 42 U.S.C. [sections] 7661a(b)(5)(E) (Supp. V 1993).

(15.)DEQ Hearing, supra note 10.

(16.)S. 88, 67th Or. Leg. Assembly (1993).

(17.)Id. [sections] 3.

(18.)For example, the first knowing violation of a discharge permit under the Clean Water Act, 33 U.S.C. [sections] 1251, was punishable as a class B felony (up to ten years in prison). Id.

(19.)Testimony of Associated Oregon Industries in Opposition to SB 88: Hearing on S. 88 Before Senate Comm. on Agricultural and Natural Resources, 67th Or. Leg. Assembly (March 19, 1993) [hereinafter AOI Testimony] (testimony of Tom Lindley, Chairman, Environmental Crimes Task Force for AOI).

(20.)"[T]he political pressures surrounding the environment may on occasion overwhelm a district attorney and result in an inappropriate charge." Id.

(21.)Id. (testimony of Jim Whitty, AOI).

(22.)Interview with Tom Lindley, Chairman of the Environmental Crimes Task Force of AOI, in Portland, OR. (Sept. 18, 1993).

(23.)Id.

(24.)Telephone Interview with John Bradley, Assistant District Attorney, Multnomah County (Sept. 20, 1993).

(25.)Interview with Tom Lindley, supra note 22.

(26.)The language was narrowed to cover only "knowing disregard" of the applicable laws or "reckless acts which cause substantial harm to human health or the environment." OR. REV. STAT. [sections] 468.946(1) (1993). Auditing confidentiality allows industries to conduct internal reviews of compliance without fear of such documents being admitted at trial. Id. [sections] 468.963.

(27.)Minnesota is one such state. The Minnesota Environmental Crimes Team (the E-Team) is an interagency coalition of law enforcement officials and environmental experts who "identify and investigate potential criminal violations of state environmental laws." Alan R. Mitchell, The Minnesota Environmental Crimes Team, NAT'L ENVTL. ENFORCEMENT J., July 1991, at 3, 4. As of July 1991, the E-Team had successfully completed 25 cases in 18 months. Id. at 6.

(28.)These attempts have not been very successful at exerting control over prosecutors. New Jersey established the Office of the State Environmental Prosecutor (OSEP) by executive order in 1990. OSEP's primary responsibility, however, is merely to coordinate state and local resources and identify chronic offenders and serious threats. OSEP itself does not retain any control over local prosecutors. Steven J. Madonna, New Jersey's Office of Environmental Prosecutor, NATL. ENVTL. ENFORCEMENT J., August 1991, at 3. Pennsylvania attempted in 1990 to centralize actual prosecuting authority in the Office of Attorney General. Roseanne B. Termini, Enactment of Environmental Legislation and Enforcement Through Criminal Sanctions: Pennsylvania as a Role Model, 9 TEMP. ENVTL. L. & TECH. J. 51, 66 (1990). The proposed bill never passed.

(29.)Telephone Interview with Jerry Lidz, Department of Natural Resources, Oregon Department of Justice (Sept. 9, 1993).

(30.)Telephone Interview with Holly Duncan, Oregon Department of Environmental Quality (Sept. 9, 1993).

(31.)Id.

(32.)Interview with Tom Lindley, supra note 22. Under the act, there are critieria for filing criminal charges. These criteria are derived from federal sentencing guidelines and federal prosecutorial discretion guidelines.

(33.)Id.

(34.)"Except in exigent circumstances, no person shall be charged with a felony ... without the personal approval of the district attorney of the county or the Attorney General of the State of Oregon." OR. REV. STAT. [sections] 468.961(1) (1993).

(35.)"[T]he district attorney of each county shall adopt written guidelines for filing felony criminal charges under this 1993 Act. The written guidelines, at a minimum, shall require the district attorney to consider and apply the following factors in determining whether to file criminal charges [list of factors follows]." Id. [sections] 468.961(2).

(36.)"[T]he Attorney General, in consultation with the [ODAA], and after appropriate opportunity for public comment, shall adopt model guidelines ...." Id. [sections] 468.961(3).

(37.)"A district attorney may fulfill [her] responsibility under subsection (2) of this section by adopting the Attorney General's model guidelines." Id.

(38.)"Prior to or in conjunction with the filing of felony charges ..., the [prosecutor] shall file a certification with the court that the guidelines ... have been applied and that, in the opinion of the district attorney or the Attorney General ... the criminal charges are being filed in accordance with the guidelines." Id. [sections] 468.961(4).

(39.)For this comment, an "inappropriate prosecution" is one where, although probable cause technically exists, charging the defendant with a crime would be outside the intended scope of the OECA.

(40.)Wayne R. LaFave, The Prosecutor's Discretion in The United States, 18 AM. J. COMP. L. 532, 533-34 (1970).

(41.)Id. at 534 (quoting T. ARNOLD, THE SYMBOLS OF GOVERNMENT 153 (1935)).

(42.)Norman Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L. REV. 1, 2 (1972).

(43.)Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. [sections] 1961 (1994).

(44.)Russell D. Leblang, Controlling Prosecutorial Discretion Under State RICO, 24 SUFFOLK U. L. REV. 79, 87 (1990).

(45.)For example, many state RICO laws cover actions by typical crime families as well as "the municipal court judge who fixes parking tickets for a small fee." Id. at 86. The judge has technically violated the RICO law, but his conduct is not the focus of the act. This charge could stem from a good faith misinterpretation of the purpose of the RICO laws by a prosecutor.

(46.)Federal Water Pollution Control Act [sections] 502(14), 33 U.S.C. [sections] 1362(14) (1988).

(47.)Dague v. City of Burlington, 732 F. Supp. 458 (D. Vt. 1989).

(48.)United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979).

(49.)Resource Conservation and Recovery Act of 1976 [sections] 1004(27), 42 U.S.C. [sections] 6903(27) (1988).

(50.)American Mining Congress v. EPA, 907 F.2d 1179, 1185-87 (D.C. Cir. 1990).

(51.)American Mining Congress v. EPA, 824 F.2d 1177, 1189 (D.C. Cir. 1987).

(52.)AOI Testimony, supra note 19.

(53.)Telephone Interview with John Bradley, supra note 24.

(54.)Mark S. Pollack, Local Prosecution of Environmental Crime, 22 ENVTL. L. 1405, 1408 (1992).

(55.)Id.

(56.)This fear was in fact a primary concern of AOI during the negotiations over the OECA. See supra notes 19-21 and accompanying text.

(57.)OR. CONST. art. VII, [sections] 5, cl. 5.

(58.)Telephone Interview with John Bradley, supra note 24.

(59.)See, e.g., United States v. Wilson, 614 F.2d 1224 (9th Cir. 1980) (court not required to enforce agency regulations unless mandated by statute or the Constitution).

(60.)OR. CONST. art. VII, [sections] 5, cls. 3-5.

(61.)OR. REV. STAT. [sections][sections] 132.310-132.370 (1993).

(62.)OR. REV. STAT. [sections][sections] 135.070-135.175 (1993).

(63.)However, a prosecutor is not constitutionally required to afford the defendant a preliminary hearing if proceeding by indictment. See State v. Sanford, 421 P.2d 988, 245 Or. 397 (1966) (no preliminary hearing required where indictment obtained); Haynes v. Gladden, 422 P.2d 679, 245 Or. 487 (1967) (no preliminary hearing is required prior to indictment). But see State v. Freeland, 667 P.2d 509, 295 Or. 367 (1983) (ad hoc decision to indict rather than pursue charge by information is an unconstitutional infringement of the Equal Protection Clause).

(64.)LaFave, supra note 40, at 538.

(65.)"A person commits the crime of unlawful ... storage ... of hazardous waste in the first degree if the person, in violation of ORS 468.095 ... knowingly ... stores ... hazardous waste and ... [k]nowingly disregards the law in committing the violation." OR. REV. STAT. [sections] 468.926(1)(b) (1993). Section 468.095 regulates hazardous waste sites and authorizes compliance with RCRA as provided in [sections] 468.086.

(66.)See OR. REV. STAT. [sections] 468.961(2), supra note 6.

(67.)Telephone Interview with John Bradley, supra note 24.

(68.)Professor Abrams divides consistency into vertical (over time or succession) and horizontal (among individuals and offices) constituents. Abrams, supra note 42, at 6.

(69.)Leblang, supra note 44, at 98.

(70.)Aspects to consider include whether the charge is brought merely for plea bargaining purposes, UNITED STATES ATTORNEY'S MANUAL [sections] 9-110.321 (Mar. 9, 1984), whether the pattern of activity relates to the purpose of the business enterprise, id. [sections] 9-110.350, or whether the nature and extent of the criminal conduct requires a RICO indictment to adequately reflect an appropriate basis for sentencing, id. [sections] 9-110.310.

(71.)Leblang, supra note 44, at 102.

(72.)OR. REV. STAT. [sections] 468.961(2).

(73.)Id.

(74.)Id.

(75.)See infra part V on the effectiveness of the court's policing.

(76.)OR. REV. STAT. [sections] 468.961(4).

(77.)Id. [sections] 468.961(2). Although a county may promulgate standards which incorporate other factors in addition to those listed in the section, such additional considerations will only serve to make enforcement more effective.

(78.)Id. [sections] 468.961(2)(f).

(79.)Id. [sections] 468.961(2)(d).

(80.)Id. [sections] 468.961(2)(i).

(81.)One prosecutor indicated that the lack of experience is usually due to the lack of cases which merited criminal sanctions in the past. Telephone Interview with John Bradley, supra note 24. In fact, even under the OECA many counties that lack industry will rarely see an enforceable violation. Id.

(82.)Interview with Tom Lindley, supra note 22.

(83.)See supra notes 41-48 and accompanying text.

(84.)OR. REV. STAT. [sections] 468.961(2)(j) (1993).

(85.)Of course, such history would be difficult for a prosecutor to prove. This problem, however, is obviated somewhat since the guidelines themselves require no particular standard of proof. Id. [sections] 468.961(4). In addition, the burden of persuasion would lie on the party seeking dismissal.

(86.)Id.

(87.)Testimony of the ODAA on S. 912B: Hearing Before the Senate Comm. on the Judiciary, 67th Or. Leg. Assembly (May 18, 1993) [hereinafter ODAA testimony! (testimony of John Bradley, Assistant District Attorney, Multnomah County).

(88.)OR. REV. STAT. title page (1993) (According to the Oregon Constitution, all laws take effect ninety days after the end of the legislative session, unless otherwise specified in the preamble or body of law. OR. CONST. art. IV, [sections] 28. This law was passed in 1993. 1993 Or. Laws 422. The session ended on August 5, 1993. 8 OR. REV. STAT. title page (1993)).

(89.)This rather artificial distinction is for analytical purposes only; the impact of OR. REV. STAT. [sections] 468.961 can differ greatly if a defendant is seeking to dismiss the accusatory instrument itself or is seeking to dismiss the actual charge.

(90.)ODAA testimony, supra note 87.

(91.)OR. REV. STAT. [sections] 135.510 (1993). The courts have consistently ruled that OR. REV. STAT. [sections] 135.510, in its past and current form, holds the only statutory grounds for a motion to set aside an indictment. See State v. Whitney, 7 Or. 386, 388 (1879) (appearance before grand jury of person for prosecution not authorized by law to be there held not appropriate grounds for setting indictment aside); State v. Mitchell, 495 P.2d 1245, 1247, 9 Or. App. 17, 21 (1972) (lack of authority of grand jury to amend indictment not sufficient grounds for setting indictment aside); State v. Stout, 749 P.2d 1174, 1176, 305 Or. 34, 38 (1988) (presentation of hearsay evidence to grand jury in violation of OR. REV. STAT. [sections] 132.910 not proper grounds for setting indictment aside under [sections] 135.510); see also State v. O'Brien, 774 P.2d 1109, 96 Or. App. 498, review denied, 781 P.2d 1214, 308 Or. 466 (1989); State v. McDonald, 361 P.2d 1001, 231 Or. 24, cert. denied, 370 U.S. 903 (1962); State v. Miller, 634 P.2d 1361, 54 Or. App. 323 (1981), review denied, 644 P.2d 1128, 292 Or. 450 (1982). Although the statute expressly says it applies to "indictments," it includes charges brought by information. State v. Kelliher, 88 P. 867, 868, 49 Or. 77, 80 (1907).

(92.)For example, a defendant can demur to the instrument under OR. REV. STAT. 135.630(6) whenever the instrument is not sufficiently "definite and certain," or under subsection (5) when some other legal bar may exist. OR. REV. STAT. [sections] 135.630(5), (6); see, e.g., State v. Tennyson, 567 P.2d 596, 598, 30 Or. App. 575, 578 (1977) (complaint failed to allege required specifics on a previous class A traffic conviction).

(93.)State v. Bishop, 612 P.2d 744, 748, 46 Or. 607, 614 (1980) (defendant may not use the failure of the state to publish list of controlled substances in a timely manner as evidence to sustain a demurrer); State v. Kurtz, 612 P.2d 749, 753, 46 Or. App. 617, 624, review denied, 612 P.2d 749, 289 Or. App. 588 (1980).

(94.)State v. Green, 605 P.2d 746, 747, 44 Or. App. 253, 256 (1980).

(95.)OR. REV. STAT. [sections] 135.755 (1993). Although officially a defendant cannot move the court to dismiss under [sections] 135.755, counsel could request the court do so on its own motion.

(96.)State v. Sharp, 559 P.2d 930, 931, 28 Or. App. 429, 432 (1977) (quoting State v. Sheperd, 533 P.2d 353, 355, 21 Or. App. 52, 55 (1975)).

(97.)State v. Hanson, 587 P.2d 508, 37 Or. App. 461 (1978), overruled by State v. Carrillo, 790 P.2d 1159, 101 Or. App. 247 (1990); State v. Bethune, 624 P.2d 1113, 51 Or. App. 271 (1981).

(98.)State v. Weitzel, 572 P.2d 334, 31 Or. App. 1093 (1977).

(99.)Sheperd, 533 P.2d at 354, 21 Or. App. at 55.

(100.)Bethune, 624 P.2d at 1114, 51 Or. App. at 273.

(101.)See supra note 91 and accompanying text.

(102.)See State v. Shadley, 517 P.2d 324, 326, 16 Or. App. 113, 116-18 (1973).

(103.)OR. REV. STAT. [sections] 135.755.

(104.)That is, this argument is based on pure statutory interpretation and not on precedent.

(105.)OR. REV. STAT. [sections] 468.961(2)(a)-(j) (1993). Note, however, that the final version of the guidelines developed by DOJ may be more specific than the statutory criteria.

(106.)Id. [sections] 468.961(2)(h).

(107.)Id. [sections] 468.961(2)(a).

(108.)Id. [sections] 468.961(2)(b).

(109.)The questionable call hypothetical assumes good faith by the prosecutor.

(110.)OR. REV. STAT. [sections] 468.961(1), (4) (1993).

(111.)Id. This circumstance is analogous to judicial review of an environmental impact statement under the National Environmental Policy Act (NEPA), 42 U.S.C. [sections] 4332(2)(E) (1988). NEPA provides only procedural rights to plaintiffs; the court may only verify that the agency involved has properly considered the environmental consequences of its actions. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980) (per curiam).

(112.)State v. Clark, 630 P.2d 810, 819, 291 Or. 231, 245, cert. denied, 454 U.S. 1084 (1981) (discussing a prosecutor's discretion to indict by grand jury).

(113.)Due to similarity of analysis, all constitutional arguments in this comment are based on the Oregon, rather than the U.S., Constitution.

(114.)See, e.g., State v. Scurlock, 581 P.2d 986, 987, 35 Or. App. 579, 581 (1978); Jackson v. Denno, 378 U.S. 368 (1964).

(115.)See OR. CONST. art. I, [sections] 20. Due process may also be of concern to the defendant here, but this discussion focuses on equal protection.

(116.)State v. Freeland, 667 P.2d 509, 512, 295 Or. 367, 370-71 (1983).

(117.)Id. at 515, 295 Or. at 374.

(118.)Id. at 512, 295 Or. at 370-71.

(119.)OR. CONST. art. VII, [sections][sections] 3-5.

(120.)See supra part III.B.1.

(121.)See Freeland, 667 P.2d at 519, 295 Or. at 381.

(122.)State v. Wash, 684 P.2d 18, 20-21, 69 Or. App. 93, 97 (1984).

(123.)Such dismissal, although not technically authorized by statute, is well-supported in both Oregon and federal case law. See United States v. Goodwin, 457 U.S. 368 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 368 (1978); State v. Halling, 672 P.2d 1386, 1387, 66 Or. App. 180, 183 (1983) (applying United States Supreme Court decisions to Oregon law).

(124.)For example, the elected District Attorney may have political motives to convict "environmental criminals," or the non-elected prosecutor may just want to get promoted.

(125.)Bordenkircher, 434 U.S. at 363; see also Halling, 672 P.2d at 1388, 66 Or. App. at 184. Note that if the prosecutor makes clear from the outset that the charges would be filed if the defendant declines the plea agreement, no dismissal will result. See 434 U.S. at 360.

(126.)Goodwin, 457 U.S. at 384 (footnote omitted).

(127.)This is the common remedy in prosecutorial vindictiveness cases. The court will usually only dismiss those charges which the prosecutor added after the defendant declined to negotiate. See Halling, 672 P.2d at 137, 66 Or. App. at 183.

(128.)The analysis here would be similar to that under a questionable call. Given even arguments, a court should defer to the prosecutor's judgment, See supra part V.B.

(129.)See State v. Simmelink, 668 P.2d 477, 478, 64 Or. App. 465, 468, review denied, 672 P.2d 347, 296 Or. 117 (1983) (ethical misconduct by prosecutor does not justify dismissal if not vindictive).

(130.)United States v. Ballard, 779 F.2d 287, 295 (5th Cir.), cert. denied, 475 U.S. 1109 (1986) (prosecutor's decision to prosecute is within granted discretion and is not subject to judicial review absent a strong showing of actual vindictiveness).

(131.)See supra part II.