Citing the intent to target flash mob theft, an occurrence seen in other states whereby a group of people engage in a crime simultaneously, making it more difficult for any one individual to be detected, stopped, or caught, Senator Doug Whitsett (R-Klamath Falls) introduced SB 1534. The bill created the felony crime of aggravated solicitation for persons who use electronic communication to solicit two or more persons to commit a crime.

The level of heightened penalty for electronic solicitation would be based on the severity of the crime solicited: Class A felony if the target crime is a Class A felony or murder or treason, Class B felony if the target crime is a Class B felony, and Class C felony if the offense solicited is a misdemeanor or a Class C felony.

Solicitation of a crime falls under an historic exception to free expression under Article I, section 8 of the Oregon Constitution, meaning that speech can be regulated when the speech is the solicitation of a crime. As a policy matter, however, SB 1534 took the wrong approach to regulating solicitation based on the manner of expression. One person might gather two friends at a coffee shop to plan a robbery and another person might email two friends to plan a robbery. Under the bill, the second person would be subject to a more severe penalty than the first person simply because he used email to commit the crime. Of further concern with the bill were the potential proportionality issues. It is troublesome enough that, no matter the level of the target crime, the bill punishes the solicitation communication as if it is the act itself. But the provision that created a Class C felony for soliciting a misdemeanor target crime is especially problematic – raising issues under Article I, section 16 of the Oregon Constitution, which states that “all penalties shall be proportioned to the offense” – because it would make the penalty for solicitation more severe than for the act of committing the crime itself.

SB 1534 received a hearing in the Senate Judiciary Committee, but did not advance to a work session.